Preparation for Respect@Work Laws

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Respect@Work Act) passed into law in Australia in November 2022. We previously gave an overview on the Respect@Work Bill in September 2022 (see article here).

This article focuses on what you need to do to prepare for the new, positive duty to prevent/eliminate sexual harassment.

Overall, the Act requires businesses to be proactive, rather than reactive, in addressing sexual harassment, discrimination and victimisation in the workplace.

The Positive Duty

The key change under the Act is the new positive duty on businesses to take reasonable steps to eliminate sex discrimination, sexual harassment, and victimisation at work.

The introduction of the positive duty not only applies to employers in respect of their employees. It also applies to all businesses in respect of the “workers” in the relevant business or undertaking. The definition of worker is consistent with federal work, health and safety legislation, and includes their contractors and subcontractors, the employees of contractors and subcontractors engaged by the business, employees of labour hire companies who have been assigned to work in the business, apprentices and trainees, students, and volunteers.

The Respect@Work: Sexual Harassment National Inquiry Report (2020) has adopted a new framework to more effectively prevent, and respond to, workplace sexual harassment (Respect@Work Framework).

To meet the positive duty, and adopting the Respect@Work framework, employers and other duty holders must act now in the form of:

• Risk assessments, including undertaking risk assessments and audits to identify and assess sexual harassment risk factors, and continuously evaluate workplace arrangements, conditions and culture. Steps a business can take include:
  • updating the workplace risk register to include sexual harassment risks and control measures to address those risks;
  • the development of a leadership statement committing to reducing the risks of sexual harassment; and
  • consultation with workers and related third party businesses, as well as engaging with external stakeholders, when undertaking the risk assessments.
• Strong organisational leadership and knowledge, noting that stand-alone training is unlikely to meet this duty, and other control measures will be required, such as:
  • ongoing training and education through microlearning (education delivered through short activities) and social learning (learning by observing other people, including leaders, and how they engage on addressing sexual harassment);
  • comprehensive reviews of anti-discrimination and harassment policies and procedures including to outline procedures for reporting concerns and widespread communication of policies in relevant languages (i.e. where the workforce comprises workers from non-English backgrounds);
  • ensuring employment, volunteer and contractor agreements contain a clause requiring them to comply with workplace sexual harassment policies, complaints protocols and codes of conduct; and
  • where alcohol is present in workplaces or at work events, limiting or not offering alcohol at work events and/or having supervision and security protocols to monitor and respond to staff and customers under the influence of alcohol.
• Promoting a safe, inclusive and respectful workplace culture through understanding, consulting about and influencing the workplace culture.
• Building a support and reporting system that supports subjects of sexual harassment and adequately handles incidents of workplace sexual harassment, to ensure those in the workplace feel safe in making reports. The support system should be person-centred (i.e. placing people at the centre of any response to sexual harassment). Businesses must also consider the ability of individuals to make anonymised disclosures through existing whistleblowing laws, or if not caught within those provisions, consider whether businesses should make available other reporting channels to enable individuals to confidentially report workplace sexual harassment.
• Measuring and compiling data on the prevalence of sexual harassment, the nature of sexual harassment - when, where and how it occurs - who is involved and what form it takes, and the impacts it has on workers, businesses and communities. This information can be obtained from a number of sources, including management culture and behaviour reviews, work surveys and exit interviews.

The new powers of the AHRC to investigate and enforce the positive duty will not come into effect until November 2023, to give businesses sufficient time to implement measures to comply with the positive duty. When determining the steps required to comply with the positive duty, duty holders must have consideration to the size, nature and circumstances of their business or undertaking, their resources, and the practicability and costs associated with the steps.

More Information

The AHRC is also continuing to develop practical education and guidance materials to help employers and duty holders understand their responsibilities and the changes they may need to make to meet the new legal obligations under the Respect@Work Act. To assist with these changes, the AHRC has set up a new website, which provides information and resources to help fulfil these new obligations.

Please don’t hesitate to reach out to our team who would be more than happy to discuss the new legislation, and ways to prepare your business to meet these obligations.