In March’s HR Breakfast Club Forum, BAL Legal Director, Gabrielle Sullivan of the Employment & Investigation Team, discussed a series of legislative reforms arising from the Respect@Work: Sexual Harassment National Inquiry Report 2020. As Gabrielle observed, the inquiry resulted in three waves of significant legislative change, with considerable implications on employers and organisations.
Notable areas of Gabrielle’s discussion included:
Gabrielle gave a brief summary of what the three ‘waves of legislation’ entailed and when they commenced.
1. The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2022
Gabrielle first discussed the amendment passed in September 2021, which now prohibits ‘sex-based harassment’ as defined under section 28AA of the Sex Discrimination Act 1984 (Cth) (SDA). Gabrielle reviewed the scope of sex-based harassment per this section and noted that the amendment lowered threshold from “seriously demeaning” conduct to conduct of a “demeaning nature”.
Gabrielle highlighted the Fair Work Commission’s new powers to issue ‘Stop Sexual Harassment Orders’ in the workplace and the change to the limitation period to lodge complaints with the Australian Human Rights Commission, which increased from 12 months to 24 months.
2. The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022
This next amendment commenced in December of 2022 and further amends various discrimination related legislation. Gabrielle discussed the concept of ‘hostile workplace environments’ and the introduction of a positive duty on employers to eliminate unlawful sex discrimination in the form of hostile workplace environments, sexual harassment and harassment on the ground of sex.
Gabrielle discussed how section 28M of the SDA makes it unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex. Section 28M now prohibits conduct (in a workplace) which a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person by reason of the person’s sex, a characteristic that appertains generally to persons of the sex of the person or a characteristic that is generally imputed to persons of the sex of the person. This conduct may take the form of regular discussions of sexually explicit experiences in the workplace or the display of obscene or pornographic materials – the conduct does not have to be directed at the offended person, nor does the offended person have to be included in the behaviour.
Gabrielle also mentioned that these amendments grant new regulatory powers to the Australian Human Rights Commission to investigate compliance and hold employers to their positive obligations.
3. The Fair Work (Secure Jobs, Better Pay) Act 2022.
Commencing just last month on 6 March 2023, the amendments under section 527D explicitly prohibit sexual harassment under the Fair Work Act 2009 (Cth) (FW Act), under pain of civil penalties. Gabrielle touched on how employers may be vicariously liable under section 527E of the FW Act for breaches of section 527D by their employees. Additionally, and of importance for the litigation of a sexual harassment dispute, Gabrielle discussed how the amendment enables aggrieved employees to apply to the Fair Work Commission for sexual harassment disputes arising under the FW Act for conciliation (and possibly for arbitration with the consent of both parties), with matters that do not settle going the Federal Court resolution.
Gabrielle next discussed the implications for employers and their organisations as a consequence of the new positive duty under section 47C of the SDA. This duty commenced in December 2022 and requires employers to take all ‘reasonable and proportionate measures’ to eliminate, as far as possible, sex-based discrimination, sexual harassment, sex-based harassment, and sex-hostile workplaces. To judge whether an employer has taken all necessary steps, consideration will be given to the size/nature and circumstances of their business or undertaking, their resources (financial or otherwise), the practicability and cost of measures undertaken by the employer to eliminate the prohibited conduct and any other relevant matters.
Prior to this reform, an employer may have been liable to damages for economic loss or non-economic loss in instances of sex-based discrimination at work (Richardson v Oracle Corporation Australia Pty Ltd [2014]), and under the former Workplace Health and Safety regime or existing Workers Compensation schemes. Gabrielle observed that following this amendment, an employer’s liability has been broadened to vicarious liability for sex-based discrimination, sexual harassment, sex-based harassment, hostile workplace environments upon their failure to take all reasonable steps to prevent the conduct.
Consequently, Gabrielle raised a series of suggestions for employers to implement within their organisation, pursuant to the Good Practice Indicators Framework for Preventing and Responding to Workplace Sexual Harassment.
Gabrielle first suggested that organisations allocate responsibility, seek appropriate information relevant for their organisation and implement consultation-based policies regarding complaint handling and risk identification. Gabrielle also recommended that statements should be issued to staff regarding the amendments and about the desired employee conduct and that employers should lead by conduct.
Gabrielle advised that training should be implemented across organisations to ensure employees and employers alike understand what sex-based discrimination is and how it is caused, in addition to the employer’s role in prevention and response.
Gabrielle advised that through means relevant and necessary to the organisation, employers must foster a respectful, open and communicative workplace environment to create a positive workplace culture.
Gabrielle recommended that employers should conduct frequent risk assessments of their organisation, noting the workplace and contextual factors which increase risk. Gabrielle mentioned that workplace factors which increase risk may include male-dominated industries, workplaces that are organised according to a hierarchical structure, workplaces with a masculine culture and workplaces which are isolated and remote. Additionally, contextual factors that increase risk may include a lack of diversity or accountability, limited understanding of sexual harassment, misuse of alcohol and poor culture.
Gabrielle advised that employers should establish a tailored, internal support procedure for complainants and train responding staff proactively, to resolve these incidents with compassion and discretion.
Gabrielle also encouraged employers to consider the range of reporting options available to their organisation, emphasising a person-centred and trauma-informed approach which accounts for the needs and preferences of all employees. She raised further considerations for privacy and confidentiality, the avoidance of victimisation and the maintenance of a clear and transparent process for handling complaints.
Gabrielle advised that employers should ensure their board and higher management regularly receive reports pertaining to the risks, prevalence and nature of sexual harassment in order to prevent and respond to harassment in their workplace in a timely fashion. The data collected from these reports should be analysed and embedded within the organisation’s preventative and proactive action.
Gabrielle’s concluding message was an emphasis on proactivity. She recommended employers apply these suggestions and establish procedures to counter harassing and discriminating conduct in the workplace. Gabrielle affirmed that effective, proactive action should directly foster a safe, respectful and effective workplace, securing employers and their organisations from this new liability.
To register for future HR Breakfast Club forums, visit our monthly forum page and register to attend.If you have any questions or wish to discuss your circumstances with a lawyer, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.