By Robert King, Partner Cornwalls and Alexandra Lovell, Law Graduate Cornwalls. 

Against the backdrop of the “Me Too” movement, the Australian Human Rights Commission (Commission) undertook a workplace review that culminated in its 2020 Respect@Work report (Report). The Report seeks to reflect the shifting community sense of a person’s right to attend work free from sexual harassment or sexual conduct being directed towards them and in particular for women.

The Federal Government, having announced that it would implement a range of recommendations from the Report, introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (the Bill).

If the Bill becomes law, what will change for businesses?

All employers and businesses are already required to recognise the need to have a code of conduct or sexual harassment policy. A significant difference with this Bill is that, for the first time, there will be a statutory, positive duty on businesses to take reasonable and proportionate steps to eliminate:

1. sexual harassment, or
2. harassment on the ground of sex; or
3. hostile workplace environments on the grounds of sex; or
4. victimisation relating to complaints, proceedings, allegations, or assertions in relation to such harassment.

Until now, except for the work health and safety duty to ensure the safety of workers, it has been widely considered by many that the real, practical impact of a code of conduct or sexual harassment policy, has been that it can potentially provide grounds for a defence to a claim of vicarious liability. Employers may be vicariously liable for conduct amounting to sexual harassment by one of its workers, unless it can show that it has taken reasonable steps to prevent the sexual harassment. A policy and often online training regarding sexual harassment, has been seen by many businesses as the key elements of such a defence.

Now however, having a sexual harassment policy or having online training on the policy, will no longer be just about defending a claim. Rather, it will be about demonstrating compliance with a positive duty to eliminate unwelcome sexual conduct in the workplace.

The MEA Employer Advice team will host a free industry webinar about what the Respect@Work reforms mean for electrical contractors. Register today.

Commission will be able to investigate businesses even if there has been no complaint

The Bill invests the Commission with powers to inquire into businesses to determine if the businesses are complying with the now positive duty to eliminate unwelcome sexual conduct.

The Commission can direct a business to comply and there are pecuniary penalties for non-compliance. Remember, noncompliance does not depend on there being a complaint of sexual
harassment. Merely failing to take reasonable and proportionate steps may result in penalties for non-compliance.

So, what do employers need to do?

Employers need to consider the reasonable and proportionate steps they can take to ensure that workers are not exposed to sexual harassment. This requires more than merely reviewing your sexual harassment policy or ensuring annual online training.

Employers that are working to eliminate sexual harassment need to consider:

1. where are the areas of risk in the business and this will invariably mean to consider, where are the employee or workers who are most at risk (this means younger women particularly);
2. whether workers know who to speak to if they have concerns;
3. the general workplace culture of the business – for example, identify if there remain pockets of employees who think that it is “normal” for males to engage in sexual comments or conduct
   towards females in the workplace;
4. taking both a medium and a long-term focus on how sexual harassment will be managed rather than having a short-term “reactive” response when an issue arises;
5. how to consult with their workers about areas of risk and the medium and long-term focus the business should adopt; and
6. what measures can reasonably be implemented to respond to sexual harassment – recognising that merely updating a policy or procedure or training is unlikely to be sufficient to meet the
   need for reasonable and proportionate steps.

This legislative change is going to require businesses to be active about preventing sexual harassment rather than reacting to complaints or defending vicarious liability claims.
If you are unsure of what is required to demonstrate reasonable and proportionate steps please contact Cornwalls.

Queries
For further information regarding the above, please contact the authors or any member of the Cornwalls Employment, Workplace Relations and Safety team.

Disclaimer
This information and the contents of this publication, current as at the date of publication, is general in nature to offer assistance to Cornwalls’ clients, prospective clients and stakeholders, and is for reference purposes only. It does not constitute legal or financial advice. If you are concerned about any topic covered, we recommend that you seek your own specific legal and financial advice before taking any action.