In early 2020, the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report 2020 was released with damning statistics about the number of Australians who had experienced sexual harassment in the workplace.

As a result of this report, the Government has introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 with the view to implement seven of the recommendations listed in the report relating to discrimination and workplace gender equality.

Although these changes are not yet in effect as the legislations has only been tabled into parliament, having knowledge about the upcoming changes and preparing your workplace for compliance should be front of mind for leaders and business owners. This is not just because its going to be the law, it makes good business sense.

So, let’s find out a bit more about the report:

Background

Regardless of historical and existing anti-discrimination legislation, sexual harassment – tragically – is still extremely prevalent in Australian workplaces. According to the Australian Sex Discrimination Commissioner, Kate Jenkins, one in three people have experienced sexual harassment at work in the past five years. Yes, you read that right, ONE IN THREE!

It was also evidenced that Aboriginal and Torres Strait Islander people, members of the LGBTQ+ and people with disabilities are, on average, more likely to experience sexual harassment within the workplace.

So, what this means is that the current state of our regulatory and legal frameworks are clearly not working to protect Australians in this space, which is why the report suggests a new framework is needed. The recommendations within the report are not put forward to start from scratch, but rather to build on the existing legal frameworks to achieve better outcomes. The new model is “evidence-based, victim-focused and framed through a gender and intersectional lens” (Kate Jenkins).

From the 55 recommendations made within the report, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill (the Bill) will implement 7 of the legislative changes.

So, what are the changes specifically?

The key changes within the Bill are summarised below:

• It places positive duties on employers – employers will now be required to take “all reasonable and proportionate measures” to eliminate sex discrimination, sexual harassment and victimisation (as far as possible). Businesses will have a grace period of 12 months to understand these new obligations, but we are certain that the expectations will be that a having a broad policy and some occasional training will not be enough anymore.
• Prohibition against hostile workplaces – specifically in the cases of hostile workplaces on the basis of sex. This means that when harassment of a sexual nature, even when not directed at a specific person, results in someone feeling offended within the general environment, it is now an offence under the Bill.
• New powers will be granted to the Australian Human Rights Commission (AHRC) – AHRC will be given powers to enforce compliance by monitoring and assessing employers’ adherence to their new positive duties. This will include their ability to issue compliance notices to employers not meeting their obligations.
• Costs protection – for complainants who bring claims under federal anti-discrimination laws. They will now adopt a general approach that results in each party being the bearer of their own costs (i.e cost neutral).

What should employers do to prepare?

These changes are a significant shift from employers’ previous levels of responsibility and levels of expected compliance. As I touched on, the historical approach to anti-discrimination and anti-harassment have fallen short in driving change so it’s not farfetched to think that implementing a “tick the box” exercise such as annual training or a policy that no one really reads will not cut it.

Given that these are not yet enacted, we’re in a privileged position of having time on our side to get this right. Some things you might like to consider ensuring you and your business are ready for the changes may include;

• Conducting a thorough audit and risk assessment within your business to identify and assess the extent of sexual harassment risk factors. Do this in consultation with your employees so that you obtain a robust understanding of what is truly going on. Followed up by continuously evaluating the workplace and improving on your current policies, practices and overall workplace culture.
• Include sexual harassment risks and control measures in any workplace risk registers.
• Be proactive rather than reactive in your approach to hazard identification.
• Comprehensively review your anti-discrimination and harassment policies and procedures, ensuring there are adequate steps listed for reporting concerns.
• Ensure your contracts of employment, as well as contractor agreements, have clauses that speak to their compliance with workplace Sexual Harassment Policies and Code of Conduct.
• Messaging and education for employees around driving a culture of inclusion and a zero-tolerance approach to harassment of any kind.
• Encourage a culture of trust, transparency and safety for anyone who reports concerns. It’s all good and well to have a procedure, but if people are afraid to speak up – what’s the point?
• It all starts at the top – educate your leaders to model the behaviours you expect from your employees around appropriate behaviour in the workplace.
• Develop a clear set of company values that are the gold standard for how you want your employees to behave and have clear consequences for people who do not comply and behave inappropriately

Business owners and leaders have a clear role to play in ensuring that when people come to work, they feel psychologically safe. This means that people can go to work and do their jobs without fear of being sexually harassed or treated in a way that makes them feel uncomfortable. Shared ownership around bringing about change is the best way we can make this a reality.

So, if you’re reading this blog thinking, where do I start? Are we doing things the right way? Do we have a reason for concern? Then don’t be afraid to reach out for a chat so we can support you in ensuring your compliance.

Written by Madeleine Bray