Respect@Work – Are you complying with your obligations?

In March 2020, the Australian Human Rights Commission (AHRC) released its landmark  Respect@Work report, which was the outcome of an 18-month inquiry into sexual harassment in workplaces, led by Australia’s (now former) Sex Discrimination Commissioner, Kate Jenkins. The report outlined 55 recommendations for government, business and community sectors to consider in relation to preventing and responding to sexual harassment.

The Respect@Work report paved the way for major legislative changes regarding sexual harassment, including requiring employers take proactive steps as part of a new ‘positive duty,’ to prevent harassment, violence and discrimination in the workplace. Accordingly, in late 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (the Act) came into effect.

What does this mean for Employers?

Although the key points of the amended legislation have been widely publicised; for many employers, understanding what actions they need to take to comply with their obligations may prove difficult due to the magnitude of information that surrounds this topic. 

The positive duty requires all employers and persons conducting a business or undertaking (PCBUs) to take “reasonable and proportionate” measures to prevent certain discriminatory conduct, including sex discrimination, sexual harassment, sex-based harassment and certain acts of victimisation in the workplace context. This includes conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex. Further, changes to wording in the Act have broadened the definition of workplace conduct to cover conduct by clients, customers and contractors.

The positive duty shifts the focus for employers from just responding to complaints after they occur, to working towards actively preventing sexual harassment and discrimination from occurring in the workplace. Merely having a policy implemented and carrying out ad-hoc training for employees is not sufficient to meet the obligations under the Act.

The AHRC also has expanded powers under the Act and will have the power to enforce compliance with the positive duty in the SDA. The AHRC can commence an inquiry when it ‘reasonably suspects’ that an organisation or business is not complying with the positive duty. It’s important to note also that the new provisions mean a worker can seek a remedy from their employer, in addition to the alleged offender, where the business/organisation did not take all reasonable steps to prevent sexual harassment.

To assist employers and PCBUs with complying with the new legislative standard, the AHRC has developed a framework based on seven standards aimed at preventing discriminatory conduct, including sex discrimination, sexual harassment and hostile work environments. The first four standards are aimed at preventative actions and the last three are focused on responding to reports of sexual harassment:

1. Leadership – Leaders set the tone and direction of an organisation from the top. They must demonstrate clear and visible support for actions targeted at preventing and responding to sexual harassment. 
2. Risk assessment and transparency – Leaders need to understand how to identify and address risks of sexual harassment that are specific to their workplace.
3. Culture – The culture of an organisation is a crucial factor in determining how an organisation prevents and responds to sexual harassment.  It is also one of the most challenging factors to influence and change, particularly for leaders within an organisation. 
4. Knowledge – Organisational education strategies should involve a combination of different types of learning, both formal and informal. Developing and implementing an effective workplace sexual harassment education strategy requires a structured and considered approach. Education needs to be regular and ongoing.
5. Support – Providing appropriate support to victims after a report of sexual harassment is imperative. Creating trust with the employees by demonstrating that your reporting processes do no further harm to people’s well-being will give your employees the confidence to report and address sexual harassment.    
6. Reporting – Employers should respond to reports of sexual harassment and discrimination in a timely, fair and appropriate manner. The way in which a workplace handles a reported incident of workplace sexual harassment can have significant impacts not only on the victim or person making the report but also on the alleged harasser and the workplace as a whole.
7. Measuring – Regular and ongoing reporting assists leaders in evaluating how effective their programs and strategies are in preventing sexual harassment and discrimination in the workplace.

Need further support?

Preston HR can assist employers with developing or reviewing policies and procedures as well as delivering customised training packages. To learn more about how Preston HR can support your business, contact one of our HR Consultants today.