In a 2022 Australian Human Rights Commission (AHRC) survey of 10,000 Australians, 33% of workers stated that they had been sexually harassed at work in the previous five years (broken down to 41% of women and 26 % of men). These statistics demonstrate the pervasiveness of sex discrimination in the workplace.
On 28 November 2022, the Australian Federal Parliament passed the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill. This bill implements the remaining recommendations of sex discrimination commissioner Kate Jenkins’ 2020 Report, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. As stated in our first article on sex discrimination in the workplace, the previous Federal government decided not to implement some of the proposed changes.
These new laws will significantly re-shape the legal obligations of businesses and employees in the way they respond to sex discrimination in the workplace. Key changes made in these new laws include:
- making it unlawful for a person to subject another person to a hostile workplace environment on the grounds of sex;
- imposing a positive duty on businesses to eliminate unlawful sex discrimination from the workplace; and
- the removal of procedural barriers for representative bodies to initiate actions in the federal courts.
This article explains these changes and how they will affect employers in how they manage their workplaces, and employees who wish to make a complaint of sex discrimination against their employer or colleagues.
Hostile Workplace Environments
Hostile workplace environments have been a problem for workers according to the 2022 AHRC survey. Of those surveyed, the most common forms of sexual harassment experienced by workers were inappropriate comments or jokes (40% of women, 14% of men), and intrusive questions about a person’s private life or appearance (32% of women, 14% of men).
A major change to the law which seeks to address this is that it will now be unlawful for a person to subject another person to a workplace environment which is hostile on the ground of sex.
A person will be deemed to have subjected another person to a hostile workplace environment if they:
- engage in conduct (including the making of an oral or written statement) in the workplace;
- the other person was at the workplace at the time of the conduct, or after the conduct occurred; and
- a reasonable person would have anticipated that the conduct may result in a workplace environment which is offensive, intimidating, or humiliating to members of the other person’s sex based on the other person’s sex, or a characteristic that generally appertains, or is generally imputed to persons of that sex.
Put simply, a person cannot make another person feel offended, intimidated, or humiliated because of their sex by making inappropriate oral or written statements in the workplace. An example of when this might occur is where a male employee makes an inappropriate joke about women at work whilst a female colleague is present. It does not matter if the workplace was hostile for another reason that was more (or less) substantial than the sex of the other person. The workplace will be considered hostile if the sex of the other person was one of the reasons.
In determining whether a person has created a hostile workplace environment, the following factors must be taken into consideration:
- the seriousness of the conduct (the more serious the conduct, the more likely the person has behaved unlawfully);
- whether the conduct was continuous or repetitive (if the conduct is repeated and persistent, then it is more likely to have created a hostile workplace as opposed to a single isolated incident);
- the role, influence or authority of the person engaging in the conduct (the more senior the person involved, the more likely it is that their conduct was unlawful); and
- any other relevant circumstance.
Any person who is found to have created a hostile workplace environment on the basis of sex may be subject to the same complaints and dispute resolution procedures as other instances of unlawful sex discrimination.
Employers should have discrimination policies (including those covering sex discrimination and sexual harassment) which are known and understood by their employees. They should also supervise their employees and reprimand any behaviour which may create a hostile workplace environment. They must be prepared for any possible complaints made by employees against colleagues if this behaviour occurs in the workplace, and respond appropriately in accordance with their complaints procedure.
Positive Duty
Another change to the law which employers must take note of is the obligation imposed on businesses to take reasonable and proportionate measures to eliminate unlawful sex discrimination (which also includes victimisation).
Importantly, the use of the word “business” encapsulates both employer-employee relationships and principal-contractor relationships. The essential element is that work is being performed by one party for the other’s business. This duty also applies to the business’ agents.
In determining whether a business has taken all reasonable steps to eliminate sex discrimination, the following factors must be taken into consideration:
- the size, nature and circumstances of the business (the bigger the business, the more likely it will be that they have to implement more measures to eliminate sex discrimination);
- the business’ financial or other resources (if the business has greater financial and other resources, then the more likely it will be that they have to implement more measures to eliminate sex discrimination);
- the practicability and the cost of steps to eliminate unlawful sex discrimination (depending on the resources, size and nature of the business, it may be that implementing certain measures will be deemed disproportionately expensive and/or impractical); and
- any other relevant matter.
In order to enforce the positive duty, the AHRC has been given powers to make inquiries about whether a person is complying with their positive duty to eliminate sex discrimination from their business. The AHRC will make such inquiries if it reasonably believes that the person is not doing so.
After finalising its inquiries, if the AHRC believes that the person has not complied with their positive duty, then it can issue a compliance notice to the person setting out the details of their failure to comply with their positive duty and the steps they must take within a specified period to remedy the breach of duty. If the AHRC believes that a person has failed to comply with a compliance notice, it may apply to the Federal Court or Federal Circuit and Family Court of Australia to make an order directing the person to comply with the notice.
Employers must be aware of this new positive duty as it could have significant consequences for their business’ reputation (if found to be breaching this duty). Employers need to make an assessment on whether they are currently implementing adequate measures to eliminate sex discrimination in the workplace. They should do this by weighing up what measures they are currently implementing to prevent sex discrimination against the considerations outlined above. They should bear in mind that larger and better-resourced employers will be expected to have implemented more comprehensive steps than smaller and less-resourced employers.
If the employer does not believe that they have done enough to prevent sex discrimination in their workplace, they should assess what measures they can reasonably implement within their means and then implement those measures.
Some measures which most employers should be able to implement include:
- implementing a policy for sex discrimination (if they have not already done so) and ensuring that the policy is readily accessible and understandable by persons from all backgrounds and cultures;
- requiring employees to attend regular training and/or education seminars regarding what conduct is unacceptable or unlawful in terms of sex discrimination;
PH Solicitor can provide our services to your business by conducting such training and educational seminars for your employees.
- displaying factsheets and posters in the workplace reminding employees of their obligations regarding sex discrimination; and
- ensuring that employees have read and understood the employer’s sex discrimination policies. To do so, the employer may wish to allocate time during their employees’ day for them to review the policy. After doing so, the employer should require the employee to sign a document stating that they have read and understood the policy.
Implementing such measures will help ensure that you and your business comply with the new positive duty.
Representative Applications
The new laws now remove the procedural barriers experienced by representative bodies, such as a union, who can now initiate an action on behalf of a group of people where the matter is not resolved in the AHRC. Previously such representative bodies were unable to initiate an action in the federal courts on behalf of a group of people. This is no longer the case with these laws.
Further Changes Likely
It is likely that in the future there will be further changes made in relation to the awarding of costs where court proceedings are necessary in relation to a complaint. The suggested default position is to not expose complainants of sex discrimination to adverse costs orders by having each party bear its own costs no matter the outcome of the dispute. This matter is currently being considered by the Attorney-General’s Department and could have important implications for employers accused of breaching sex discrimination laws.
Conclusion
These new sex discrimination laws are likely to fundamentally impact how businesses and employees respond to sex discrimination in the workplace, making it even more crucial from a legal-compliance perspective that businesses are taking active steps to eliminate sex discrimination in the workplace. These laws put greater personal responsibility on individuals (but also on employers) to be aware of their behaviour and the workplace environment they create. Employers must now ensure that they remain proactive in the fight against sex discrimination and to be aware of the behaviours of their workers. Doing so would help them avoid the reputational and financial consequences of breaching the law.
PH Solicitor understands that many employers and employees will have questions about these new laws and the implications they will have on their workplace. Please contact us on admin@phsolicitor.com.au or phone (03) 9642 0435 to discuss any matter or to arrange an appointment.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.
