Sexual Harassment: Respect at Work Reforms

In 2022, the Sex Discrimination Act 1984 and the Australian Human Rights Commission Act 1986 were amended to provide better protections against sexual harassment for workers. The amendments introduced several new provisions designed to better guard against workplace sexual harassment. This page outlines the new protections.

Enquiry into Sexual Harassment

The changes were passed in response to the recommendations of Sex Discrimination Commissioner Kate Jenkins following the National Enquiry into Sexual Harassment in Australian Workplaces, which found that sexual harassment, particularly against women, was rife in Australian workplaces.

The enquiry considered the prevalence, nature and drivers of workplace sexual harassment and the existing legal framework for dealing with it.

The report found that change in Australian workplaces in the years since the passage of the Sex Discrimination Act in 1984 had been disappointingly slow. Sexual harassment in workplaces remained widespread, and the current legal framework was inadequate for dealing with the problem.

In December 2022, the Anti-Discrimination and Human Rights Legislation Amendment ( Respect at Work ) Act 2022 came into effect. It introduced a number of new protections, the most important of which are outlined below.

Hostile work environment

The reforms introduced section 28M into the Sex Discrimination Act. That provision makes it unlawful to subject another person to a work environment that is hostile on the ground of sex.

This section prohibits conduct that results in a work environment that is offensive, intimidating or humiliating even where this conduct is not directed at a specific person.

Positive duty

The amendments also imposed a positive duty on employers and persons controlling a business or undertaking (PCBUs) to take reasonable precautions to eliminate discrimination including sexual harassment. This duty will be enforced by the Australian Human Rights Commission (AHRC)

These two provisions represent a move away from the old complaints-based model towards a framework that requires proactive measures to be taken by employers on a regular basis.

Inquiries into systemic discrimination

The changes have also empowered the AHRC to inquire into suspected systemic discrimination – conduct in a workplace that forms a pattern and affects a group of people.

Lower threshold for sexual harassment

Under the changes, sex-based harassment is now defined under section 28AA of the Sex Discrimination Act as ‘conduct of a demeaning nature’ rather than ‘conduct of a seriously demeaning nature’, representing a lower threshold to establish that it has occurred.

Effect of the changes

Under the changes, organisations are now required to proactively prevent their staff from taking part in prohibited conduct such as discrimination and sexual harassment. Companies will now need to carry out risk assessments periodically and adopt measures such as incorporating gender equality strategies and having managers model and encourage appropriate behaviour.

The AHRC now has powers to investigate and enforce the positive duties of employers and PCBUs under the new laws.

Penalties

Organisations that do not comply with sexual harassment laws and do not take reasonable steps to prevent harassment occurring in the workplace may be subject to enforcement action or civil penalties.

Complaints about sexual harassment

Complaints about sexual harassment can be made to the Fair Work Commission (FWC). The FWC may deal with a sexual harassment complaint by:

• making a stop sexual harassment order; or
• conciliating or mediating the dispute, or making recommendations; or
• arbitrating the dispute (where both parties agree).

When FWC arbitrates a dispute, it may make orders:

• for compensation
• for lost wages
• requiring a person to do something to remedy loss or damage.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.