This article applies to all organisations in Australia.
Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth)
On 13 December 2022, relevant parts of the Anti‑Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (the Act) commenced to amend the Age Discrimination Act 2004 (Cth) (the AD Act), Disability Discrimination Act 1992 (Cth) (the DD Act), Racial Discrimination Act 1975 (Cth) (the RD Act) and Sex Discrimination Act 1984 (Cth) (the SD Act).
Background
The Act was passed in response to the recommendations of the Sex Discrimination Commissioner’s Respect@Work Report. It intends to address sexual harassment and other forms of sex discrimination in the workplace and creates new victimisation offences to provide consistency with the Commonwealth anti-discrimination legislation.
Hostile workplace environment on the ground of sex
The Act introduces a new section 28M to the SD Act to prohibit hostile work environments. A hostile work environment on the basis of sex can be created by a person (the first person) who works with another person (the second person), where a reasonable person would have anticipated the possibility of the first person’s conduct resulting in the workplace environment being offensive, intimidating or humiliating to the second person by reason of their sex, or a characteristic that relates to or is generally imputed to people of their sex.
Positive duty to eliminate unlawful sex discrimination
Employers and persons conducting businesses or undertakings, under section 47C of the SD Act, now have a positive duty to ensure that they take proportionate and reasonable steps to eliminate:
- discrimination on the ground of a person’s sex under sections 14, 15, 16 and 17 of the SD Act;
- sexual harassment or harassment on the ground of sex under section 28B of the SD Act;
- hostile workplace environments under section 28M of the SD Act; and
- acts of victimisation under section 47A of the SD Act;
that are perpetuated by the employer or the person conducting the business or undertaking; their employees or workers, or their agents.
Importantly, the definition of harassment on the ground of sex under section 28AA has been amended to lower the threshold for conduct, by removing the word “seriously” from the requirement for the conduct to be of a seriously demeaning nature.
Victimisation
The Act clarifies that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint by inserting section 47A into the AD Act; section 58A into the DD Act, and section 18AA into the RD Act. Under Part 2 of Schedule 7 of the Act, sections 47A of the AD Act; 58A of the DD Act, and 18AA of the RD Act apply to conduct occurring before their commencement if the conduct is taken to be unlawful under the sections.
Conclusion
Organisations must ensure that they have adequate systems in place to address their new positive duty to eliminate unlawful sex discrimination and hostile workplace environments on the ground of sex.
