Respect@Work Amendment Bill has passed
Parliament has now passed the new legislation which ensures the onus is on employers to take proactive steps to end harassment, violence and discrimination in the workplace. Here are some key changes
1. Abolition of hostile work environments
The Respect@Work report noted sexual harassment could occur in "sexually charged or hostile" workplace environments and just the existence of these environments can increase the risk of people experiencing other forms of unlawful discrimination, such as sexual harassment which could include displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes. Businesses need to determine he risks associated with their workplaces and put initiatives in place to mitigate those risks.
2. What does this mean for employers?
Every employer now has a ‘positive duty’ to take steps and demonstrate that they are proactively trying to eliminate sex discrimination "as far as possible". This is a change from being a complaints model to one where businesses have to now be proactive. We recommend you now implement policies, collect and monitor data, and provide training and support to employees.
3. Enforcing positive duty
The Australian Human Rights Commission (AHRC) now has the power to monitor and assess compliance with the new legislation. However, the government is giving employers 12 months for businesses to understand the changes in legislation and introduce changes within the workplace before AHRC will be involved. This means after 12 months if AHRC is presented with an allegation of business non-compliance, they can start enquiring about positive-duty measures.
4. Systemic inquiry function of the AHRC
The AHRC now having powers to monitor and assess compliance means that the AHRC can conduct broad inquiries into systemic unlawful discrimination and the factors that may cause them.
5. Representative claims
Previously if a representative body such as a union put a claim on behalf of a group to the AHRC but the claim wasn't resolved, the union couldn't then initiate action in the federal courts on behalf of the group. This is no longer the case. Now representative bodies can make representative complaints (i.e., applications to the federal courts).
6. Who pays the court costs?
It was found that people are disincentivised to take their sexual harassment cases to court due to potential huge legal bills. The issue hasn’t been solved but the attorney-general's department is now set to review a more viable cost option to persuade people to make their cases heard.
7. Public sector gender reporting
The public sector now has to report annually to the Workplace Gender Equality Agency (WGEA) on the following six key indicators:
Gender composition of the workforce
Gender composition of governing bodies
Equal pay between men and women
How available and used flexible working arrangements are to support employees with family or caring responsibilities
Consultation with employees about issues around gender equality in the workplace
Sex-based harassment and discrimination
Other changes include amending some of last year's legislation that was passed by the previous Coalition government which includes:
clarifying that victimising conduct can be the basis of a civil, not just criminal, complaint.
Increasing the time frame for people to make a complaint from six months after an alleged incident to two years afterwards.
These changes are very complex so please contact us should you require clarification or have any specific questions.