New positive duty to prevent workplace sexual harassment passes Parliament

On 28 November 2022, the Anti-Discrimination and Human Rights Legislation (Respect at Work) Bill (Respect at Work Bill) passed Parliament, introducing a positive duty on employers to prevent workplace sexual harassment.

Other key measures include an express prohibition on conduct that results in a hostile workplace environment on the basis of sex, as well as strengthening the AHRC’s powers to assess and enforce compliance with the positive duty and conduct systemic inquiries into unlawful discrimination.

The AICD has been a strong proponent of these reforms. Sexual harassment in the workplace is relevant to various streams of the board’s work, including oversight of organisational culture; workplace health and safety; and risk management. You can read the AICD’s submission supporting these important reforms here.

We take a closer look below at what directors need to know about these important changes.

Positive duty to prevent workplace sexual harassment

Of most significance, the Respect at Work Bill introduces a positive duty on employers to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation in the workplace as far as possible (Respect@Work Report recommendation 17).

Importantly, the positive duty will apply to all employers, with no exclusions. However, what is considered ‘reasonable and proportionate’ measures by an employer will vary depending on the organisation, and be assessed on factors such as its nature, size, circumstances, resources available as well as the practicability and cost of the measures.

At the Federal level, the Sex Discrimination Act does not impose a standalone obligation on organisations to take proactive steps to prevent workplace sexual harassment. Rather, an employer may be vicariously liable for the sexual harassment misconduct of its employees or agents where it has not taken “all reasonable steps” to prevent that conduct from occurring. However, the question of whether an employer is vicariously liable for the actions of its employees only arises after sexual harassment has already taken place and an individual complaint has been made.

The new positive duty under the Respect at Work Bill aims to address the current gap in the legal framework. It will shift the burden from individuals having to make complaints to one where employers must continuously assess whether they are meeting the requirements of the duty to take proactive and preventative action.

Similarly, while Australia’s work health and safety (WHS) laws require persons conducting businesses or undertakings (PCBUs) to ensure the health and safety of its workers as far as reasonably practicable, this duty is only enforceable by WHS regulators. A key benefit of a positive duty under the Sex Discrimination Act will be the AHRC’s ability to take a more trauma-informed approach to a sexual harassment investigations, taking account of broader systemic and structural drivers of sexual harassment within the workplace culture as part of its investigation.

Enforcement of the positive duty

Under the new laws, the AHRC will be equipped with a range of new regulatory tools to monitor and enforce compliance with the positive duty (Respect@Work Report recommendation 18). These will include options to:

• Conduct inquiries into an employer’s compliance with the positive duty and provide recommendations to achieve compliance;
• Give a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance;
• Apply to the federal courts for an order to direct compliance with the compliance notice; and
• Enter into enforceable undertakings where employers remain non-compliant.

The AHRC will be able to initiate an inquiry into an employer’s compliance with the positive duty if it ‘reasonably suspects’ that a person is not complying. This view may be formed by information or advice disclosed by other agencies or regulators, impacted individuals, unions or worker representatives, or media reporting, for example.

Importantly, employers will have 12 months before the AHRC's new powers to "monitor and assess compliance" with the positive duty. This delayed commencement will ensure that employers have sufficient time to understand their obligations under the positive duty and implement changes, if necessary. It will also enable the AHRC to prepare and publish guidance materials on the positive duty and establish its new compliance functions.

Systemic inquiries into unlawful discrimination

The Respect@Work Report found that there are significant cultural and systemic factors driving sexual harassment in Australian workplaces and addressing these systemic drivers can be challenging. While the AHRC has existing powers to inquire into systemic issues in relation to human rights and unlawful discrimination, these inquiry powers can be confined in scope.

As such, the Respect@Work Report recommended that the AHRC be provided with an enhanced inquiry function to inquire into systemic unlawful discrimination, including systemic sexual harassment, on its own motion (Respect@Work Report recommendation 19).

The Respect at Work Bill implements this recommendation and it is hoped will provide an opportunity to gain real-world insights into practices across different sectors and enable employers to reflect on how they might apply key learnings to their own organisations.

Hostile work environments on the basis of sex prohibited

The Respect@Work report found that sexual harassment can occur in "sexually charged or hostile" workplace environments, even in situations where the behaviour was not directed at one person in particular. It was noted that conduct such as “displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes” can result in people of one sex feeling unwelcome or excluded by the general environment and at risk of experiencing sexual harassment more generally.

To address these concerns, the Respect at Work Bill introduces an express prohibition on any conduct that results in a hostile workplace environment on the basis of sex. The circumstances to be considered when deciding if behaviour is unlawful include: 

• The seriousness of the conduct;
• Whether the conduct was continuous or repetitive;
• The role, influence or authority of the person engaging in the conduct; and
• Any other relevant circumstances.

Resources for directors

The AICD has a range of resources to help directors understand their obligations with respect to preventing sexual harassment in the workplace, including key questions to ask of management:

• AICD Director Tool: Preventing and responding to sexual harassment at work
• AICD Governance Snapshot: The board’s role in preventing workplace sexual harassment
• AICD Governance Snapshot: The board’s role in responding to workplace sexual harassment – a complainant centric approach

Other key resources include:

• Respect@Work Portal – bringing together a set of resources for employers and workers, including best-practice guides, training programs, workplace-assessment tools, information, videos and advice.
• Chief Executive Women’s ‘Respect is Everyone’s Business’ Toolkit – including practical resources to initiative and navigate critical conversations at work, example policies and board reporting frameworks and processes