On 12 December 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (the Act) was passed, introducing important amendments to the Sex Discrimination Act 1984 (Cth).
As we approach the end of the Act’s twelve-month transition period, it is important for employers to understand the changes, particularly in the lead-up to the festive season where social functions and events commonly take place in connection with the workplace.
What are the changes?
The Act introduces a positive duty on employers and persons conducting a business to take reasonable and proportionate measures to eliminate discriminatory conduct in the workplace context, as far as possible. Such conduct includes:
Sex discrimination;
Sexual harassment;
Sex-based harassment;
Conduct that subjects a person to a hostile work environment; and
Acts of victimisation.
The Act requires that employers take proactive steps to prevent the conduct from occurring in the workplace. This ‘proactive’ requirement is a step further than just responding to discriminatory conduct that has already occurred and aims to ensure that people can enjoy a safer workplace at all times.
What does this mean in practice in the workplace?
The positive duty will operate alongside existing duties in the Work Health and Safety Act 2011 (Cth) which requires employers to provide a safe working environment. Importantly, the duty applies to employers and persons conducting a business and therefore, extends to organisations such as not-for-profits and sole traders, as well as contractors, apprentices, trainees, and volunteers.
The duty also applies to discriminatory conduct carried out by third parties in the workplace that affects employees. These third parties may include customers, clients, patients, suppliers, and visitors.
A number of factors will be taken into account to determine whether an employer has taken reasonable and proportionate steps to eliminate sexual harassment. The factors include the size and nature of the company, their circumstances and resources, and the cost of taking measures to eliminate the conduct.
It is recommended that employers familiarise themselves with the changes. Additional resources are available at https://www.respectatwork.gov.au/organisation/response/support.
Extra caution should be taken to ensure that end of year functions do not result in a breach of the Act. At workplace events, there is an increased likelihood of the consumption of alcohol by attendees, which often results in the reduction in social inhibitions and the impairment of sound decision-making. The Act expects employers and anyone conducting a business to consider these risks when planning and managing work functions.
In addition to understanding the legislative changes, employers should ensure that their organisation has their own current policies in place regarding sexual harassment and discrimination. Such policies should be circulated to staff along with a reminder of the standards of behaviour expected at events, as well as potential disciplinary consequences if the standards are not met.
If you need assistance in relation to employment law matters, please contact Jenkins Legal & Advisory on 02 4929 2000 or email office@jenkinslegal.com.au.
This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.