The Respect at Work Bill has passed: What does this mean for HR?

The Anti-Discrimination and Human Rights Legislation Amendment Bill 2022, also known as the Respect at Work Bill, cleared both the Australian Senate and House of Representatives on 28 November 2022. HR Leader reached out to legal firms with an interest in workplace relations for their thoughts on what this means for HR and workplaces. The word “proactive” came up again and again.

The Australian Prime Minister’s statement on the bill passing said: “This historic Respect@Work legislation significantly progresses gender equality by ensuring women are able to earn a living in safe, sexual harassment-free workplaces.” And noted that, “Sexual harassment is not inevitable – it is preventable.”

A beneficiary of this bill is the Australian Human Rights Commission. They commented that the bill is “a milestone in addressing workplace sexual harassment in Australia”. According to the Prime Minister’s statement, one of the achievements of this bill is that it will: “Strengthen the Australian Human Rights Commission with new functions to assess and enforce compliance with this new requirement, including the capacity to give compliance notices to employers who are not meeting their obligations.”

HR Leader has been following the progress of the bill:

• How ‘acceptable’ workplace behaviours are evolving
• Respect at Work Bill to help prevent sexual harassment
• Employment and workplace relations partner on current top legal concerns for HR

The director of Kingsford Legal Centre, Emma Golledge, issued a joint statement on the bill’s passing alongside Women’s Legal Service NSW, UNSW Sydney, and Community Legal Centres Australia.

Ms Golledge said: “We are thrilled by the creation of a positive duty on employers to eliminate sexual harassment at work. We have been advocating for this for many years. This provision has the potential to have a profound impact on the lives of many workers in Australia.”

“This will mean employers will have a legal obligation to take concrete steps to make workplaces safer and free from sex discrimination. This will have a cultural and systemic impact, with the burden of preventing and addressing sexual harassment being shifted to those in positions of power,” she added.

Sydney Legal Consulting’s (SLC) legal director, Trish Ryan, shared with HR Leader that this bill means that employers need to be more “proactive” on these issues.

Ms Ryan stated: "SLC is pleased to see the Respect@Work Bill has now been passed. Whilst the changes do not take effect immediately, employers would be wise to start taking steps now to address changes that need to be made to ensure compliance.”

She continued: “Whilst there have always been obligations to provide a safe workplace, this bill cements into law a positive duty to prevent sexual harassment as well as to prevent victimisation and sex discrimination. This shifts the focus from reactive to proactive and means employers need to take a strategic and long-term lens to what steps they can take on an ongoing basis from the board level down and not just turning our minds to these matters if and when a complaint arises.”

Aaron Goonrey, Lander & Rogers workplace relations and safety partner, called out that the issues the bill addresses are “work health and safety (WHS) hazards”.

He shared: “It is important not to forget that unlawful sexual discrimination and harassment are work health and safety hazards. Employers and PCBUs [persons conducting a business or undertaking] must consider the safety risks by not taking steps to prevent this conduct from occurring. Relevantly, workplace sexual harassment can cause both psychological and physical harm.”

Looking at Australia’s different states and territories, Mr Goonrey said: “In NSW, for example, employers and PCBUs are now unequivocally required to manage psychosocial risks to worker health and safety, as part of the increasing push to address mental health in the workplace (NSW Work Health and Safety Regulation 2017). It is likely that other states and territories will follow suit and make changes reflective of SafeWork Australia’s recent amendments to the model WHS Laws, and Code of Practice on Managing psychosocial hazards at work.”

Swaab partner Michael Byrnes highlighted the need for employers to be mindful of what “all reasonable steps” means when it comes to preventing sexual harassment.

He stated: “The new legislation applies a similar conceptual framework to that used for work, health and safety compliance. The WHS obligations of employers aren’t simply enlivened in the event of an incident; they are ever-present and, as a result, in many organisations, WHS compliance is now ingrained in the culture. That is the objective of the new legislation in relation to unlawful sex discrimination. In practical terms, the sort of ‘reasonable and proportionate’ measures employers will need to take includes the development and effective implementation of policies, training and education and active monitoring. Many employers, cognisant of the ‘all reasonable steps’ requirement for the defence to vicarious liability in sexual harassment matters, might already be taking steps such as this. Such action now becomes critically important for all employers.”

Mr Byrnes also noted that sexual harassment doesn’t need to necessarily be “directed” at the victim: “Employers should also be aware of the new prohibition in the legislation on conduct that subjects another person to a workplace environment that is hostile on the grounds of sex. This captures behaviour that is not necessarily directed at an individual – conduct such as sexual innuendo or lewd jokes, display of offensive material or sexualised banter to which an employee is subject (even if it is not directed to, or about, them) could constitute a breach of this new provision. Once again, policies, training and monitoring should be directed at compliance with this new prohibition.”

Paul O’Halloran, Dentons partner, told HR Leader that exit interviews could possibly play a part in deciding if the employer is fulfilling their obligations under the bill.

He commented: “The bill has adopted a work health and safety approach to sexual harassment, sex discrimination, hostile work environments and victimisation, where the positive duty requires employers to be proactive in eliminating such conduct instead of reacting to complaints. HR managers will need to turn their minds to the adequacy of current training, policies and procedures and consider whether additional measures are necessary to discharge the duty, such as collecting information through exit interviews, anonymous surveys and providing appropriate support to employees.

“The size and resources of a company and the practicability and cost to eliminate the conduct will be relevant considerations in determining whether an employer or duty holder has complied with the positive duty,” he added.

Fay Calderone, Hall and Wilcox partner, shared in a recent LinkedIn article she penned on 25 November that, “As many of the recommended changes to ensure compliance with the law reflect best practice, employers are encouraged to consider their obligations together with their values and objectives and move beyond compliance to the creation of healthy, inclusive and respectful workplaces.”

Partner at Baker McKenzie Michael Michalandos shared with the HR Leader that: “These changes should be regarded as a clarion call to employers that the standard approach of issuing policies, procedures and conducting ‘cookie-cutter’ training will not be enough.”

He noted that: “A recent survey of executives of top tier organisations conducted by our firm revealed that the most commonly reported whistleblowing matters within organisations are bullying, discrimination, and harassment.”

Mr Michalandos also stated: “We are seeing a strong and concerted push by the government to drive home that employers must be pro-active in ensuring the psychological safety of employees at work. The Respect@Work Act requires employers to focus on the prevention of sexual and sex-based harassment and empowers the AHRC to investigate systemic and cultural discrimination in organisations. However, employers must also note that changes to work health and safety laws also focus on a positive duty on employers to prevent psychosocial risks in the workplace. Employers should expect going forward that this will be an area of focus for safety inspectors.”

Note from the editor: This article has been prepared for informational purposes only and is not to be construed as advice (legal or otherwise).