From 13 December 2022, Australian employers have a new positive duty to take reasonable and proportionate measures to eliminate sexual harassment and sex discrimination as far as possible.
There is a grace period until the Australian Human Rights Commission (AHRC) can investigate and enforce compliance with the duty – those powers come into effect on 13 December 2023.
This article outlines the new laws, including:
- the legal definition of sexual harassment;
- the scope of the duty and what it means for your business;
- practical steps your business can implement; and
- the AHRC’s powers to assess and enforce compliance.
What is the legal definition of sexual harassment?
Sexual harassment is defined as
“an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.”
This definition means the perpetrator’s intention doesn’t matter, it’s whether a reasonable person would anticipate the person that is subject to, hears or observes the conduct would feel uncomfortable.
The new prohibition on hostile work environments
The new laws prohibit workplaces that are hostile on the ground of sex.
A workplace will be “hostile on the ground of sex” if a reasonable person would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person by reason of that person’s sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
It remains to be seen how the Courts will deal with this complicated definition, but the AHRC’s examples of a hostile working environment on the ground of sex include the display of obscene or pornographic materials, general sexual banter, crude conversation or innuendo and offensive jokes.
What is the new duty?
The new laws require employers and persons conducting a business or undertaking (i.e., any business regardless of whether it has employees) to take reasonable and proportionate measures to eliminate, as far as possible, specified forms of sex discrimination, including sexual and sex-based harassment, hostile work environments and victimisation.
The duty requires measures to be implemented to prevent this conduct being engaged in by employees, workers (including sub-contractors and volunteers), agents, and third parties, where applicable.
The new positive duty operates alongside existing duties under WHS laws to provide a safe working environment so far as reasonably practicable.
What are ‘reasonable and proportionate’ measures?
The meaning of ‘reasonable and proportionate’ measures will vary between duty holders, depending on their circumstances. Relevant considerations might include the size and nature of the business or undertaking, the duty holder’s resources and the practicability or costs involved.
Measures include implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training on a regular basis.
However, the approach to addressing workplace sexual harassment should look beyond policies, one-off training and complaint-handling.
What steps can my business take?
The Respect@Work report (the government recommendations behind the new laws) includes some recommendations for proactive steps, but they are fairly vague. We’ve included some practical suggestions under each heading below.
Develop strong organisational leadership, through celebrating positive behaviours, transparent communication and ensuring accountability.
For example: Communicating about the steps your business is taking to prevent sexual harassment and discrimination and promoting and celebrating diverse workplaces.
Include the positive duty to prevent sexual harassment and sex discrimination and the steps the business is taking to achieve it as a regular agenda item at board and senior leadership meetings.
Ensure organisational knowledge and awareness, through ongoing education strategies encompassing formal learning, as well as micro and social learning.
For example: Including appropriate workplace behaviour as part of each employees’ induction and regular in person-training (as opposed to “checkbox” training). Ensure this is documented for each employee.
Risk management Assessments
Undertake transparent risk management assessments to identify risks of sex discrimination in the workplace and implement control measures to address those risks.
For example: identifying teams where individuals are in the minority based on their sex, considering any risks and considering whether regular check-ins are appropriate.
Promote a safe, inclusive, and respectful workplace culture, through assessing the currentculture, consulting with employees, and addressing any current gaps or deficiencies.
For example: conducting anonymous surveys to gauge any problems with workplace culture and educating workers on how they can raise issues (including anonymously).
Building a response system that supports complainants of sex discrimination throughout the process, (i.e., responding to the needs of the person, rather than applying a systematic-based approach).
For example: having a complaints procedure and following a process where the complainant, witnesses and the respondent (where appropriate) is regularly updated and supported throughout.
Develop an effective, responsive and flexible reporting framework, which upholds key principles of procedural fairness.
For example: Investigating complaints thoroughly (unless the conduct is admitted) and ensuring the business does not make a decision until fact finding is complete.
Regularly collect and analyse data to understand the prevalence and nature of sex discrimination in the workplace, and communicate and operationalise insights.
Businesses should be reviewing their current approach to preventing sexual harassment and sex-based discrimination to ensure they are taking the proactive steps outlined above.
It starts with a policy and training, but businesses should be wary of a “set and forget” approach. Make sure the training and communication about the positive duty is regular and documented.
If you would like any assistance in understanding your new legal obligations, or the ways in which your business can prepare, please get in touch with our employment law team.