The Bill is concerned with the prevention of workplace sexual harassment. Ultimately, the intention of the Bill is to prevent sexual harassment and discrimination occurring in the first instance, as opposed to addressing and/or responding to discriminatory or harassing conduct after it has occurred.
In summary, among other things, the Bill[2] seeks to achieve its aim of preventing sexual harassment by implementing the recommendations of the Report by:
(a) Prohibiting conduct that subjects another person to a workplace environment that is hostile on the grounds of sex;
(b) Introducing a positive duty on employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination (including sexual harassment) as far as possible;
(c) States that an object of the Sex Discrimination Act 1984 (Cth) is to achieve ‘substantive equality’ between men and women (as opposed to ‘equality of opportunity’;
(d) Amending the definition of harassment on the ground of sex to remove the reference to conduct of a ‘seriously’ demeaning nature; and
(e) Amending the Australian Human Rights Commission Act 1986 to:
(i) Enable the Australian Human Rights Commission (AHRC) to monitor and assess compliance with the positive duty;
(ii) Provide the AHRC with a function to inquire into systemic unlawful discrimination; and
(iii) Enable a representative body to progress a complaint on behalf of one or more affected persons from conciliation at the AHRC to application to the court.
Arguably, the most important aspect for employers is the need to be aware of the proactive positive duty to be imposed upon employers. This will require businesses to take action to eliminate unlawful sex discrimination.
Conclusion
What Does This Mean for Australian Employers?
The key change for employers in the Bill is the requirement upon employers to implement measures to eliminate unlawful sexual conduct as far as possible.
This means that employers will now have an ongoing positive obligation to take proactive and preventative action by taking reasonable and proportionate measures to eliminate unlawful sexual harassment and/or discrimination, as outlined by the Bill.
This is different to the current situation where individuals make complaints to their coordinators, supervisors and other employer managers after being subjected to unlawful sex discrimination and/or sexual harassment in the workplace. Instead, employers will be required to take preventative action before incidents happen – that is, a positive duty.
The Bill outlines that employers must take ‘reasonable and proportionate’ measures to prevent workplace harassment., Understandably, these will vary considerably depending on a range of different circumstances, specific to each employer, their industries and the nature of the business. The exploratory memorandum for the Bill suggests that this positive duty can be met by:
(a) Implementing policies and procedures;
(b) Collecting and monitoring data;
(c) Providing appropriate support to workers and employees; and
(d) Delivering training and education on a regular basis[3].
This positive duty or obligation is intended to align and reflect the existing duties of employers as outlined within WHS laws. Those WHS duties require employers to provide a safe working environment for their workers - so far as reasonably practicable.
It is crucial for employers to be proactive in their response to the proposed Bill, including implementing measures to ensure they are acting in line with the objective of the Bill, reviewing current workplace policies and procedures, and implementing measures to prevent sexual harassment and discrimination in the workplaces.
Please contact Hicksons’ Partner, Warwick Ryan, at [email protected] should you need any assistance or guidance.
Post by Hicksons’ Partner, Warwick Ryan and Paralegal, Sophie Amanatides.