The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill has passed the Australian Parliament.
The new legislation will give the Australian Human Rights Commission new functions to assess and enforce employer’s compliance with eliminating sex discrimination, sexual harassment and victimisation”, including the capacity to issue compliance notices to employers who fail to meet their obligations.
It expressly prohibits conduct that results in hostile workplace environment on the basis of gender and it will ensure that Commonwealth public sector organisations are also required to report to the Workplace Gender Equality Agency on its gender equality indicators.
Albanese recounted that two years ago, women “gathered in their thousands” outside Parliament House and “marched for justice” and to “say enough is enough”.
Attorney-General Mark Dreyfus told Parliament in his second reading speech in September that the legislation is the “next crucial step in fully implementing” the Sex Discrimination Commissioner Kate Jenkins’ Respect@Work recommendations.
The Attorney-General said the positive duty obligation is the “cornerstone” of the Respect@Work recommendations that marks a shift to prevention of sexual harassment and discrimination, “looking beyond remedies to misconduct”.
Dreyfus said in September that the legislation also:
- amends the Sex Discrimination Act to introduce an express prohibition “to protect people from hostile workplace environments on the ground of sex”, implementing recommendation 16(c). The protection “will not require the conduct is directed at a specific person, but instead prohibits conduct that results in an offensive, intimidating and humiliating environment for people of one sex”. He cited the report’s finding that “sexually charged or hostile workplace environments can increase the risk of a person experiencing other forms of unlawful discrimination, including sexual harassment”. The new provision “will provide clarity to employers, employees and other people in the workplace of their obligations to create safe and respectful workplace environments”;
- empowers the AHRC to inquire into systemic, unlawful discrimination (implementing recommendation 19), responding to the report’s findings that “there are significant cultural and systemic factors that drive sexual harassment in the workplace, and that addressing these drivers can be challenging”. The AHRC will be able to inquire into “any matter that may relate to systemic unlawful discrimination, or suspected systemic unlawful discrimination”. He defined systemic unlawful discrimination as “unlawful discrimination that affects a group of people and is continuous, repetitive or forms a pattern”;
- enables representative actions before the AHRC to proceed to the courts (implementing recommendation 23);
- inserts costs protections into the Australian Human Rights Commission Act, “to provide greater certainty in relation to the cost of pursuing legal action (implementing recommendation 25);
- updates the Workplace Gender Equality Act to require the federal public sector to report against six gender equality indicators to the WGEA (implementing recommendation 43);
- changes the objects of the Sex Discrimination Act to state that it seeks to achieve substantive equality between men and women (recommendation 16(a)).
Sex Discrimination Commissioner Kate Jenkins in her 932-page Respect at Work report in March 2020 made 55 recommendations, including the imposition of a positive duty for employers to take “reasonable and proportionate measures” to “eliminate” sex discrimination, harassment and victimisation, “as far as possible” (see Related Article).
The former Morrison Government passed legislation in September last year to implement six of the recommendations (16, 20, 21, 22, 29, and 30), according to the explanatory memorandum (see Related Article).
It then launched consultations in February, ahead of the May election, seeking feedback on outstanding recommendations (see Related Article), including the positive duty, claiming it had already fully implemented or fully funded 42 of the 55 recommendations (see Related Article).
The Human Rights Commission has recently launched a website described as a “one-stop-shop” to help employers prevent, and workers respond to, workplace sexual harassment.
“The Respect@Work website is the first of its kind in Australia, if not the world, bringing together a comprehensive set of over 100 resources,” said Jenkins.