New Respect@Work Provisions – Sexual Harassment

In it’s Respect at Work Amendment Act, which came into effect in September 2021, the previous Coalition Government enacted recommendations by Sex Discrimination Commissioner Kate Jenkins in her Respect@Work report, that was released in March 2020.

On 12 December 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) came into effect, which implemented further legislative changes in accordance with Commissioner Kate Jenkins recommendations.

The changes enacted by this legislative reform, included but were not limited to a requirement for employers to take “reasonable and proportionate” measures to eliminate sexual discrimination, sexual harassment and victimisation in the workplace as much as possible. This means that it is now the employer’s responsibility to actively take meaningful action to prevent harassment from occurring in the workplace.  

To assist your interpretation, we attach a table summarising some relevant recent decisions to illustrate the potential remedies that can be awarded for Sexual Harassment claims and the like.

Impact of New Legislative Provisions

One of the central reasons behind the reform according the Federal Government, was even though courts have previously determined that conduct that results in a hostile work environment may be captured through existing provisions of the Sex Discrimination Act, this is not well understood or recognised by employers and persons conducting a business or undertaking.

The changes included clarifying what it means to subject a person to a hostile workplace environment, which includes a requirement that a reasonable person would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to someone by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex.

The circumstances to be considered when determining whether the conduct is unlawful include:

  • The seriousness of the conduct;
  • Whether the conduct was “continuous or repetitive“;
  • The role, influence or authority of the person engaging in the conduct; and
  • Any other relevant circumstance.

This is intended to align with other provisions in the Sex Discrimination Act by using existing terms and concepts, such as ‘offensive, intimidating or humiliating’ and the reasonable person test. This would enable existing case law to be considered when interpreting and applying the new provision.

The Australian Human Rights Commission were also be given new powers to assess and enforce compliance with this new requirement, including the capacity to give compliance notices to employers who are not meeting their obligations.

Furthermore these changes included provisions that expressly prohibited conduct that results in a hostile workplace environment on the basis of sex, whilst ensuring Commonwealth public sector organisations are also required to report to the Workplace Gender Equality Agency on it’s “gender equality indicators.”

CCIWA Respect@Work Packages

CCIWA has recently started offering offered packages to assist employers in navigating the aforementioned Respect@Work changes.

There are a number of different packages available (three (3) in total), that offer a variety of services and programs depending on the specific business needs. The services that are offered as part of these packages, include but are not limited to:

  • A Risk Assessment checklist to determine specific areas of risk;
  • Consultation guides on how to communicate with your workforce your workforce about implementation of new policies and procedures, training and providing them with the opportunity to give feedback on the proposed policies and procedures.
  • An Employee wellbeing guide that includes best practice actions for work adjustments/reasonable accommodations for any employees involved in a sexual harassment claim;
  • An outline of reporting obligations and record keeping obligations;
  • Providing an outline of reporting obligations and record keeping obligations; and
  • Training for employees and management.

 

The services that CCIWA ultimately provide to an organisation will depend on the packages that an organisation chooses.

If you would like any more information in relation to CCIWA’s Respect@Work packages, including what is included in each package and the associated costs, please contact Jasleen Saddal, Justin Lilleyman or Michael Franzone at CCIWA.

Written By Michael Franzone – Associate, Workplace Relations

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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