Are you across the new Respect@Work laws?

By Kathryn Rees, Manager Business Advisory, and Lisa Casella, Senior Consultant

In March 2020, the Australian Human Rights Commission (AHRC) released the Respect@Work: Sexual Harassment National Inquiry Report (Respect@Work report). Included are 55 recommendations directed at all levels of government and the private sector for policy and legislative reforms to prevent and address sexual harassment in the workplace.

On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 took effect. These amendments updated the Fair Work Act 2009 to address sexual harassment at work, including:

• expanding the provisions of the Act dealing with bullying at work to include orders to prevent sexual harassment at work
• introducing a definition of sexual harassment
• confirming that sexual harassment at work is a form of serious misconduct and can be a valid reason for dismissal. 

This week, new laws were introduced into the Australian Parliament to implement the seven outstanding recommendations in the Respect@Work report. Under these new laws, the onus is on the employer to take a proactive approach to prevent sexual harassment in the workplace. This includes ensuring the business understands its obligations under the new legislation, performing risk assessments in the workplace, regular training, and having an effective complaints procedure.

The fundamental changes for businesses include:

• Employers will be required to take ​‘reasonable and proportionate’ measures to eliminate sex discrimination, sexual harassment and victimisation as much as possible. 
• The AHRC will be able to monitor and assess employer compliance with their new positive duty and conduct inquiries into businesses to address suspected systemic unlawful discrimination, including sexual harassment. 
• A sexualised work environment with a culture of sexual jokes, posters or images, even if not directed at anyone in particular, will be considered an offence.
• Unions and representative groups will be able to bring representative claims to court on behalf of individuals who claim they have experienced unlawful discrimination, including sexual harassment.
• The default position is that parties in unlawful discrimination proceedings bear their own costs. Courts will now have the discretion to make a costs order if it is considered fair. 
• The AHRC will only be able to terminate a complaint under the Age Discrimination Act, the Disability Discrimination Act and Racial Discrimination Act on the grounds of time if it has been at least 24 months since the alleged unlawful discrimination took place. This aligns this legislation with the changes made to the Sex Discrimination Act in 2021. 

The South Australian Business Chamber can help you develop a strategy for preventing and addressing sexual harassment in the workplace. The South Australian Business Chamber’s team of consultants are experts in industrial relations and can work with you to understand your obligations and develop a plan to ensure your compliance with these new requirements. Our Workplace Advisors are also on standby to advise you, contact us on 8300 0000 (select option 1).