This article is co-authored by Jessica Kamleh and Artemis Sfendourakis

Embarking on fulfilment of its election promise to implement all 55 recommendations made by Sex Discrimination Commissioner Kate Jenkins in the Respect@Work report (Report), the Federal Labor government introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Respect@Work Bill) on 27 September 2022, and more recently the Fair Work Legislation (Secure Jobs, Better Pay) Bill 2022 (Secure Jobs Bill) on 27 October 2022.   

If passed, the Respect@Work Bill will implement 7 of the Report’s recommendations, and the Secure Jobs Bill will implement one of the Report’s recommendations. This is in addition to the 6 recommendations implemented by the Morrison Coalition government.

Key amendments

The key amendments proposed by the Respect@Work Bill and Secure Jobs Bill are outlined in the table below:

Secure Jobs Bill

Prohibiting sexual harassment in connection with work28A new Part 3-5A will be inserted into the Fair Work Act 2009 (Cth) (FW Act), making it unlawful for a person to sexually harass a worker (or prospective worker). The definition of “worker” is broad and adopts the definition contained in the Work Health and Safety Act 2011 (Cth). 

Vicarious liability
In circumstances where a principal cannot demonstrate that they took all reasonable steps to prevent an employee or agent from sexually harassing a worker, the principal will be held vicariously liable.

Application to the Fair Work Commission to deal with a sexual harassment dispute
A new dispute resolution function (modelled on the existing mechanism for general protections dismissal disputes) will be introduced to the Fair Work Commission (FWC), which will enable an application to be made to the FWC to deal with a sexual harassment dispute. The FWC will have the power to deal with the dispute by way of conciliation or mediation. Where the dispute is not resolved, the parties can agree to have the matter arbitrated by the FWC, or otherwise an application can be made to the Federal Circuit and Family Court of Australia or the Federal Court.   Applications for the FWC to deal with a sexual harassment dispute can be made by the aggrieved person or an industrial association that is entitled to represent the industrial interests of the aggrieved person.  The Secure Jobs Bill also contemplates procedural rules which would allow two or more persons to jointly make an application in relation to the same alleged contravention (or related alleged contraventions).

Timeframe to make an application
Generally an application will need to be brought within 24 months after the contravention (or the last contravention) is alleged to have occurred.  However, unlike unfair dismissal and general protections applications which require the FWC to be satisfied exceptional circumstances exist to allow for applications outside the strict 21 day timeframe, the FWC will have greater discretion to permit sexual harassment dispute applications to be made outside the 24 month time limit.

Stop sexual harassment orders
The existing stop sexual harassment order jurisdiction (currently contained in Part 6-4B of the FW Act) will merge with the new Part 3-5A and continue to operate.  However, under the proposed amendments, if an individual has already applied to the FWC for a stop sexual harassment order they will also be able to commence civil proceedings in relation to discriminatory or coercive conduct under both State and Commonwealth work health and safety legislation (which currently is prohibited by section 115 of the Work health and Safety Act 2011 (Cth)).

Respect@Work Bill

The objective of the Sex Discrimination Act 1984 (Cth) (SD Act)16(a)The objective of the SD Act will be amended to state that the SD Act aims to “achieve substantive equality between women and men”.
Sex-based harassment16(b)The definition of harassment on the ground of sex[1] will be amended to remove the element of “seriousness”.  That is, the definition will change from unwelcome conduct of a “seriously demeaning nature”, to unwelcome conduct of a “demeaning nature”.
Prohibition of conduct that subjects another person to a hostile work environment16(c)Although conduct that results in a hostile work environment is likely captured by existing provisions of the SD Act, in order to provide certainty, a new provision will be inserted in the SD Act to prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex. This includes, for example, prohibiting the display of obscene or pornographic materials, sexual banter and offensive jokes.
Positive duty to eliminate unlawful sex discrimination17The SD Act will be amended to include a positive duty on employers and persons conducting a business or undertaking (PCBU) to eliminate, as far as possible, certain discriminatory conduct in the employment context.

This amendment seeks to reframe legal policy by focussing on preventing sexual harassment and discrimination rather than simply providing remedies for misconduct.  The positive duty will complement the existing work health and safety framework, which places obligations on employers and PCBUs to ensure, as far as reasonably practicable, the physical and psychological safety of workers.

To comply with this obligation, employers will need to take “reasonable and proportionate measures”, such as implementing policies and procedures, training and educating workers, collecting data, and providing support, to prevent this conduct being engaged in.
Enforcement of the positive duty18To promote and ensure compliance with the positive duty, the Australian Human Rights Commission (AHRC) will be granted authority to monitor and assess compliance. The AHRC’s powers will include the ability to conduct inquiries and provide recommendations, issue compliance notices, apply to the federal courts for an order to direct compliance and enter into enforceable undertakings.

The AHRC will also prepare guidelines for compliance with the positive duty to educate employers and duty holders on understanding their obligations.
Systemic inquiries into unlawful discrimination19The Respect@Work Bill will introduce a new broad inquiry function that will enable the AHRC to inquire into systemic unlawful discrimination or suspected systemic unlawful discrimination on its own motion.

“Systemic unlawful discrimination” will be defined to mean unlawful discrimination that “affects a class or group of persons”and “is continuous, repetitive or forms a pattern”, which will enable the AHRC to not only inquire into instances of unlawful discrimination within a business, but also across multiple businesses within a broader industry sector.
Representative applications23While representative bodies, such as unions, can currently lodge a complaint in the AHRC, in circumstances where the complaint is not resolved and is terminated by the AHRC, they are unable to make an application to the federal courts.

The proposed amendment will permit representative bodies to make applications in the federal courts on behalf of persons for whom they have lodged complaints.
Costs protection provisions25Currently, the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) does not contain a costs protection provision. This means that either party to the claim may be liable for costs. The Report highlights that this may be a deterrent from the pursuit of legitimate claims.

The Respect@Work Bill proposes that a costs protection provision be included in the AHRC Act, adopting a “cost neutrality” approach. This means the default position will be that parties will bear their own costs in an unlawful discrimination proceeding, however the court will have discretion to depart from this position.
Public sector reporting to Workplace Gender Equality Agency (WGEA)43(a)The Workplace Gender Equality Act 2012 (Cth) will be amended to require all Commonwealth public sector organisations with 100 or more employees to comply with WGEA’s public reporting requirements (which requires reporting against 6 general quality indicators).
Amended basis for civil action for unlawful discriminationNAThe Respect@Work Bill will amend the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth) to clarify that victimising conduct can be the basis for a civil action for unlawful discrimination.
Amended discretionary grounds for terminating complaintsNAThe Respect@Work Bill will amend the discretionary grounds on which the President of the AHRC may terminate a complaint made under the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth) or the Racial Discrimination Act 1975 (Cth) so that a complaint may only be terminated by the President of the AHRC if the complaint is made more than 24 months after the alleged unlawful conduct took place (not 6 months as is currently the case).

Both bills have been in introduced in quick succession following the Attorney-General Mark Dreyfus KC’s appearance at the Respect@Work Council Forum on 7 July 2022 where he spoke of the Labor government’s eagerness to promptly implement Jenkins’ recommendations.

In his second reading speech for the Respect@Work Bill, the Attorney-General noted that the bill’s recommendations were underpinned by an acceptance that gender inequality is “a key driver of sexual harassment” at work and that the bill would a “paradigm shift” that “signals to all workers that they deserve to be safe at work”.

The Secure Jobs Bill (which we have discussed in the first of a series of blogs here) is the final step in the Labor government’s commitment to implementing the proposed reforms recommended by Kate Jenkins in her Report.  The Minister for Employment and Workplace Relations, Tony Burke, noted in his second reading speech that the Secure Jobs Bill fully implements the last of the legislative changes recommended by the Report, and that the bill, in conjunction with the Respect@Work Bill, will “send a clear message that workplace sexual harassment will not be tolerated”.

Key takeaways for employers

While the final form of the bills remains to be seen, as both bills have now passed the House of Representatives, it appears that further key recommendations of the Report will be implemented – enshrining into legislation steps to promote substantive equality between women and men and to align protections against sexual harassment with current societal expectations.

In anticipation of the proposed changes, we recommend employers take the following steps:

  1. Review existing policies and procedures and consider the proposed changes in light of other duties (such as WHS duties).
  2. Identify areas for change or improvement, taking into account the likely new positive duty to eliminate unlawful sex discrimination under the SD Act and requirement that principals must prove they have taken all reasonable steps to prevent an employee or agent sexually harassing a worker, to avoid vicarious liability for the acts of their employees or agents.
  3. Once the Respect@Work Bill and Secure Jobs Bills pass, employers should implement any required changes identified in Step 2 to ensure they are meeting their obligations.  Of course, the bills are subject to change, so it is important that employers revisit Step 2 once the bills are passed. 
  4. Conduct workplace training to ensure all workers are aware of the new policies and procedures, as well as their obligations under the SD Act and FW Act.

For further assistance on ensuring you are meeting your obligations under the FW Act, SD Act, and State/Territory anti-discrimination laws, please contact our Employment & Labour team.

In our future blog posts, we will keep you updated about the status of the Secure Jobs Bill and the Respect@Work Bill’s progress. Subscribe to receive updates here.

[1] Section 28AA of the SD Act.

Leave a Reply

Your email address will not be published. Required fields are marked *