New Australian law enforces a proactive elimination of sexual harassment in the workplace

The Respect at Work Bill, commonly called Respect@Work, is a pivotal legislation amendment to eliminate sexual harassment and sex-based discrimination in Australian workplaces. This legislation signifies Australia’s commitment to creating safer workplaces where employees are protected and businesses are held accountable for unlawful conduct.

From December 12, 2023, Australian businesses will be required to be proactive, not just reactive, in preventing harassment. To meet compliance with these new rules, the Australian Human Rights Commission (AHRC) has released guidelines to help businesses adapt to the changes.

Context of the Respect at Work Bill

In 2020, the Australian Human Rights Commission published the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report. The inquiry underscored the extent of sexual harassment in Australian workplaces. Based on a national survey, the findings were stark:

• 33% of workers had experienced sexual harassment in the last five years.
• 4/5 had been sexually harassed by a male.
• Young women, ages 18-29, were more likely to have experienced workplace sexual harassment.
• The risk of harassment increased significantly for already marginalised groups: Indigenous Australians, disabled workers, and those who identified as LGBTI+.

In response to the findings, the AHRC detailed a list of recommendations to eliminate conduct that creates a hostile work environment based on sex. In 2022, the Australian Government amended the Sex Discrimination Act 1984 to address these recommendations.

What are the key takeaways from the amendment?

• It is now prohibited to subject another person to a hostile work environment based on sex.
• The threshold for sex-based harassment has been lowered from “seriously demeaning” to “demeaning”.
• The time window for reporting an alleged incident has been extended.

Most importantly, the Bill introduces a “positive duty” for all employers. Specifically:

• Businesses must take reasonable measures to eliminate unlawful conduct in the workplace.
• Positive duty is preventative rather than reactive. Businesses may be held accountable for non-compliance.

Respect at work bill: Expanding protections for Australian workers

The new laws expand coverage to protect Australian workers conducting business with or coming into contact with third parties. Companies, sole traders and organisations must now take reasonable measures to eliminate unlawful conduct from customers, clients and the general public who come into contact with their employees, subcontractors, gig workers, volunteers and apprentices in a work context.

While the positive duty requirements may appear broad and even impractical for small businesses, the guidelines suggest a degree of flexibility. What is achievable for a large corporation to implement may not be feasible for a freelancer or small business operator to conduct. In determining “proportionate” or “reasonable” measures to eliminate harassment, the Commission considers an organisation’s size, location and nature. It also considers the risk factors present within the organisation. A fast food stand that operates late at night will have vastly different risk factors than an online business consultant.

What measures will ensure compliance?

From 12 December 2023, the Australian Human Rights Commission will have the power to conduct inquiries into organisations they suspect are not adhering to the positive duty. They can engage in legally binding agreements detailing the actions a business must take to ensure compliance.

What are the seven standards in the guidelines?

The Commission has laid out seven standards that all businesses must adhere to in order to satisfy their positive duty. The mechanisms to address each of the standards are adaptable to each organisation. While larger businesses may need to implement anonymous reporting tools, human resources training and employee awareness campaigns, small businesses are permitted less formal and costly measures to tackle sexual harassment.

1. Leadership: Leaders must exemplify and commit to behaviour that furthers workplace inclusion and gender equality.
   
   
2. Culture: Businesses must create a culture of transparency and safety that encourages reporting sexual harassment.
   
   
3. Knowledge: Workplace guidelines and policies should be clarified to include behavioural expectations, repercussions of misconduct and employee rights. Workplace training may be appropriate for larger organisations.
   
   
4. Risk management: A risk assessment must be conducted. Strategies should be implemented to reduce and respond to risks.
   
   
5. Support: Assistance and resources must be available to workers who witness or are a victim of sexual harassment.
   
   
6. Reporting and response: Reporting channels must be available to employees. Responses should be swift and trauma-informed to minimise harm.
   
   
7. Monitoring, evaluation and transparency: Businesses must monitor data on their workplace misconduct and evaluate this data to improve their work environment.

Creating a more inclusive workplace

Anonymous reporting systems, like Whistlelink and Elker, are critical tools in the campaign toward eliminating sexual harassment and discrimination in the workplace. Having a confidential, anonymous channel for employees to report incidents of misconduct has sound benefits for your business, such as:

• Improving employee happiness and retention.
• Early detection of misconduct.
• Minimising the risk of costly litigation.
• Protecting the privacy of whistleblowers.

Importantly, these anonymous reporting systems are integral to company culture. They streamline the reporting process and lower the threshold for employees to alert leaders to misdemeanours before they become major public incidents. The result is not only a safer workplace. It is a protective layer for your company’s integrity and reputation.

Bio:

Alex Murray is an expert in technology and a regular writer with the team at Elker. Please visit Elker’s website to learn more about their solutions.

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