Labor Introduces Bill to Implement Further Respect@Work Recommendations

OWEN WEBB - AHA|SA WORKPLACE RELATIONS MANAGER

In September this year, the Albanese Government introduced legislation into Parliament to implement a further 7 recommendations from the Respect@Work Report (Jenkins Report) produced by the National Sex Discrimination Commissioner, Ms Kate Jenkins back in 2021.

In this article we look at the legislative changes that have been made so far from the Jenkins Report recommendations, as well as the intended amendments from the most recent legislation introduced by the Albanese Government. We also outline the implications for businesses and what they should be doing in response to these changes.

RESPECT AT WORK REPORT (JENKINS REPORT)

In 2018, the Morrison Government announced a national inquiry into sexual harassment in Australian workplaces. The Morrison Government commissioned the National Sex Discrimination Commissioner, Ms Kate Jenkins to oversee the inquiry. The Terms of Reference of the Inquiry was to review and report on workplace sexual harassment and make recommendations in relation to:

• its prevalence, nature and reporting in Australian workplaces

• the role of technology

• its drivers, including risk factors for particular population groups or in different workplace settings

• the current legal framework

• existing measures to address it and examples of good practice

• its impacts on individuals and businesses, including its economic impact

In January 2020, the Sex Discrimination Commissioner released the Respect@Work Report: National Inquiry into Sexual Harassment in Australian Workplaces (Jenkins Report). One of the overarching recommendations from the Jenkins Report was the importance of legislative amendments to simplify and clarify the overarching legal frameworks to ensure that employers and employees are able to effectively address sexual harassment in the workplace.

SEX DISCRIMINATION AND FAIR WORK (RESPECT AT WORK) AMENDMENT ACT 2021

In response to the National Inquiry and a number of recommendations from the Jenkins Report, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Act) was introduced into Parliament by the former Morrison Government and commenced on 11 September 2021. The Respect at Work Act made amendments to the Fair Work Act 2009 (Cth) (Fair Work Act), the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) and the Australian Human Rights Commission Act 1986 (Cth) (Australian Human Rights Commission Act). The Respect at Work Act gave effect to recommendations 16, 20, 21, 29 and 30 of the Jenkins Report. The amendments included the following:

• Amending the Sex Discrimination Act to ensure that the Sex Discrimination Act’s provisions are closely aligned with terms used in model Work Health and Safety laws such as the concepts of a ‘worker’ and ‘PCBU’ (persons conducting a business or undertaking). The use of these terms ensured that the coverage of the Sex Discrimination Act was expanded to include persons not previously covered under the Act including interns, volunteers and self-employed. The Sex Discrimination Act was also amended to include the term “in connection with” such that a worker, PCBU, employee or employer does not have to actually be performing their work duties at the time the sexual harassment occurs in order for the harassment to be covered under the Sex Discrimination Act.

• In addition to sexual harassment and sexual discrimination, the Sex Discrimination Act was also amended to include a new sexbased harassment provision. This amendment made it expressly clear that it is unlawful to harass a person on the ground of their sex. A person harasses another person on the ground of sex if they engage in unwelcome conduct of a seriously demeaning nature by reason of the person’s sex in circumstances in which, in line with the existing test for sexual harassment, a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated.

• The Sex Discrimination Act was also amended to introduce a provision that makes it unlawful to victimise a person if they have taken action, or propose to take action, in relation to a discrimination or harassment claim.

• The Australian Human Rights Commission was given additional powers to terminate a complaint on discretionary grounds.

• The anti-bullying legislation in the Fair Work Act was amended to make it clear that within that jurisdiction, the Fair Work Commission (FWC) can make an order to stop sexual harassment in the workplace.

• The Fair Work Act was also amended to ensure that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable. Sexual harassment was also included on the list of conduct that constitutes ‘serious misconduct’ in the Fair Work Regulations.

• The compassionate leave entitlement under the Fair Work Act was varied to enable an employee to take up to two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, had a miscarriage.

ANTI-DISCRIMINATION AND HUMAN RIGHTS LEGISLATION AMENDMENT (RESPECT AT WORK) BILL 2022

One of the election promises of the Labor party when in opposition, was a commitment to fully implement all of the recommendations of the Jenkins Report if they won government after the May 2022 election. The Albanese Government having won government, introduced the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Anti- Discrimination and Human Rights Amendment Bill) in September this year. The aim of the legislation is to implement a further 7 recommendations from the Jenkins Report, recommendations 16(a), 16(c), 17, 19, 23, 25 and 43. This includes the following proposed amendments:

• Hostile Work Environment – Introducing a new provision in the Sex Discrimination Act to ensure that people are not subjected to a workplace environment that is hostile on the ground of sex. This tries to ensure that persons are not offended, intimidated or humiliated as a result of their sex or a particular characteristic that relates to persons of that sex.

• Positive Duty – Amending the Sex Discrimination Act to provide a positive duty for employers or PCBU’s to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct such as sexual harassment. This includes amending the Australian Human Rights Commission Act to provide the Commission with functions which include publishing appropriate guidelines for compliance with the positive duty and to undertake research and educational programs in relation to the positive duty. The Commission would also be given the power to inquire into an employer or PCBU’s compliance with the positive duty and if they find that the employer or PCBU is not compliant then providing recommendations to remedy the non-compliance and where necessary issuing a compliance notice. The Commission would also have the power to apply to the Courts for an order for the employer or PCBU to comply with the compliance notice if the Commission is of the view that the employer or PCBU has not complied with the notice.

• Inquiries into systematic unlawful discrimination – Amending the Australian Human Rights Commission Act to confer on the Commission the ability to inquire into any matter that may relate to systematic unlawful discrimination or suspected systematic unlawful discrimination. Systematic unlawful discrimination would mean unlawful discrimination that (a) affects a class or group of persons; and (b) is continuous, repetitive or forms a pattern.

• Representative Applications – Amending the Australian Human Rights Commission Act to enable a representative body such as a trade union to make an application on behalf of one or more affected persons to the courts, where a complaint has not been resolved through conciliation with the Commission.

• Costs – Inserting new cost protection provisions in the Australian Human Rights Commission Act, so that the court can only make cost orders under certain circumstances having taken into consideration a range of matters including the financial circumstances of the parties, the conduct of the parties and whether any offers in writing to settle the proceedings have been made.

• Public sector reporting to the Workplace Gender Equality Agency – Amending the Workplace Gender Equality Act 2012 to require public sector organisations to report to the Workplace Gender Equality Agency on its gender equality indicators.

• Victimisation – The Respect at Work Act made it unlawful to victimise a person if they have taken action, or propose to take action, in relation to a discrimination or harassment claim. The amendments in the Anti-Discrimination and Human Rights Amendment Bill, seek to ensure the provisions in relation to victimisation being unlawful under the Sex Discrimination Act, are equally extended to other Commonwealth antidiscrimination Acts.

IMPLICATIONS FOR BUSINESSES

In light of the introduction of the Respect at Work legislation introduced in 2021 and the Albanese Government’s recent Anti- Discrimination and Human Rights Amendment Bill we recommend that employers should review the following areas:

Existing Policies & Procedures

Employers should review their existing sexual harassment and anti-discrimination policies and procedures to incorporate areas such as the new ground of sexbased harassment.

Internal Complaints/Grievance Procedures

Any procedures with respect to complaint handling and grievance disputes should also be reviewed to ensure they are consistent with the Respect at Work legislative changes.

Any internal complaints mechanism should be easily understood and widely publicised to ensure that staff are fully aware of what they can do in the event they wish to make a complaint in relation to sexual harassment or discrimination.

Leave Policies

Employers are encouraged to review any existing policies on leave entitlements to ensure they are updated to incorporate the two days of paid compassionate leave (unpaid for casuals) if the employee, or employee’s current spouse or de facto partner, has a miscarriage.

Preventative Training

Preventative training on sexual harassment and discrimination should be provided to any new employees as part of their overall onboarding process. This ensures that new staff members understand what the expected behaviours of the company are, what constitutes sexual harassment and what to do in the event that an employee wishes to make a complaint.

For existing employees, refresher training should also be provided on these topics as part of their ongoing professional development.