The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022(Cth) places a positive duty on employers, including agencies to take reasonable and proportionate measures to eliminate hostile workplace environments, sexual harassment, harassment on the grounds of sex, gender-based discrimination in the workplace and related acts of victimisation.
Under the Work Health and Safety Act 2011 (Cth) a “worker” includes employees, contractors and subcontractors and their employees, volunteers and trainees.
What is the duty?
An agency, as an employer, and by extension senior leaders and managers, must take reasonable and proportionate measures to eliminate as far as possible, the following conduct:
- discrimination against a current or prospective worker on the grounds of their sex
- sexual harassment, or harassment on the ground of sex:
- by the employer
- by a worker towards a current or prospective worker
- by a third party towards a worker or a person related to the business
- creation of hostile work environments
- acts of victimisation in relation to a complaint of any of the above matters.
The duty is contained in section 47C(2) and section 47C(4) of the Sex Discrimination Act 1984 (Cth).
What conduct is covered by the positive duty?
In addition to sexual harassment and gender-based discrimination, the positive duty also applies to prevent harassment on the grounds of sex and hostile work environments.
What is harassment on the ground of sex?
Harassment on the ground of sex occurs where a person engages in unwelcome conduct of a demeaning nature in relation to the sex of a person, or a characteristic of their sex, or a characteristic that is generally attributed to that sex.
This is conduct that falls in between sexual harassment and discrimination. That is, it is conduct which is not necessarily of a sexual nature (for example sexual comments or innuendo) and which does not meet the legal test for direct or indirect discrimination.
What is a hostile work environment?
A workplace may be found to be hostile on the grounds of sex where a person engages in conduct that could reasonably be anticipated to result in the environment being offensive, intimidating or humiliating to a person by reason of that person’s sex, or characteristic of their sex.
How does the positive duty interact with existing Work Health and Safety (WHS) duties?
WHS laws will operate concurrently with the positive duty. This means that employers may be liable for WHS breaches in addition to a breach of the positive duty.
However, the positive duty requires employers to specifically consider their responsibility to prevent hostile workplace environments, sexual harassment, harassment on the grounds of sex, and gendered based discrimination in the workplace, in addition to their overarching responsibility to maintain a workplace that is safe for their employees.
A safe workplace includes considering the potential risk to mental and physical safety of employees which may be impacted by the conduct covered by the positive duty.
What are the consequences for not complying with the duty?
As of 12 December 2023 the Australian Human Rights Commission (AHRC) has enforcement and investigatory powers in relation to the positive duty. A failure to comply with the positive duty may result in the AHRC taking the following action:
- conduct an inquiry into a person’s compliance with the positive duty
- issue a compliance notice to the employer where non-compliance is identified
- enter into an enforceable undertaking with the employer
- make an application to the Federal Court, for enforcement of a compliance notice against an employer.