The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect at Work Act) was introduced to implement six recommendations from the Respect@Work Report, and included the following amendments to the Sex Discrimination Act 1984 (Cth) (SD Act):

• prohibiting conduct that subjects a person to a hostile workplace environment based on their sex (section 28M of the SD Act)

• introducing a positive duty on employees to eliminate unlawful sex discrimination, including sexual harassment (section 47C of the SD Act)

• lowering the test for a finding of sex-based harassment from conduct of a “seriously demeaning nature” to conduct that is “demeaning in nature” (sub-section 28AA(1)(a) of the SD Act)

• make the objects of the SD Act to “achieve substantial equality between men and women” and “eliminate, so far as possible, discrimination involving workplace environments that are hostile on the ground of sex”.

Hostile workplace environment

Section 28M of the SD Act makes it unlawful “for a person to subject another person to a workplace environment that is hostile on the ground of sex”. A hostile workplace environment may be one where persons of a particular sex are made to feel uncomfortable or excluded and includes workplaces where obscene or pornographic materials are displayed, or where innuendo and offensive jokes occur. Such conduct may also constitute sexual harassment if directed towards a particular person. In addition, a workplace is any place a worker goes, including lifts and bathrooms, and places where work is performed even if it is not being performed at a particular time. Finally, the conduct is not limited to workers, but also could apply to customers and clients, so long as there is a sufficient connection to the workplace.

Positive duty on employers

Section 47C of the SD Act establishes a positive duty on employers and PCBUs (Persons Conducting a Business or Undertaking) to take “reasonable and proportionate measures” to eliminate sexual harassment, as far as possible. This obligation mirrors similar requirements under work health and safety legislation, considering factors such as the employer’s size, resources, and the nature of the business. Reasonable and proportionate measures may include up-to-date policies, robust complaints handling and investigation processes, and comprehensive education and training programs to address and prevent sexual harassment effectively.

Expanded powers of the Australian Human Rights Commission (AHRC)

The Respect at Work Act also amended the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act), expanding the powers of the Australian Human Rights Commission (AHRC) to undertake inquiries, provide recommendations, and issue compliance notices in cases of sexual harassment. These enforcement powers, which only commenced on 12 December 2023, allow the AHRC to:

• issue compliance notices requiring organisations to take, or refrain from taking, action

• enter into enforceable undertakings with organisations

• apply for court orders directing compliance with compliance notices.

Protections under the Fair Work Act

In addition to the amendments brought about by the Respect at Work Act, section 527D of the Fair Work Act 2009 (Cth), expressly prohibits sexual harassment in the workplace.  This protection extends to all workers, encompassing not only employees but also individuals engaged in work for an organisation. Employers may also be held vicariously liable for instances of sexual harassment occurring within their organisations under section 527E. The Fair Work Commission (FWC) can also deal with a dispute involving sexual harassment and may make a stop sexual harassment order.

The imposition of positive duties on employers, the expanded powers of the AHRC, and the protections provided under the Fair Work Act 2009 (Cth) underscores the statutory obligations on employers to combat sexual harassment and provide safe work environments. Employers should proactively implement measures to comply with these requirements and ensure their workers understand their rights and obligations through appropriate communications and training.  

To find out more watch our on-demand webinar: Respect@Work and Psychological hazards in the workplace.