The Federal Government has introduced legislation designed to fulfil its policy commitment at the last election to fully implement the Respect@Work recommendations that Sex Discrimination Commissioner Kate Jenkins handed down in 2020.

If passed, the legislation will introduce two key changes:

• Hostile workplace environment: It will be unlawful to engage in conduct that subjects another person to a workplace environment that is hostile on the ground of sex.
• Positive duty to eliminate unlawful sex discrimination: A new provision in the Sex Discrimination Act 1984 (Cth) (SD Act) will introduce a positive duty on all employers and persons conducting a business or undertaking (PCBUs) to take ‘reasonable and proportionate measures’ to eliminate unlawful sex discrimination, including sexual harassment, as far as possible.

Example: Applying the new proposed laws

Bill is the general manager of an IT company. He made several statements in the lunchroom in the presence of a group of employees. The statements are offensive, intimidating or humiliating to women by reason of their sex. A reasonable person would reach this conclusion, having regard to all relevant circumstances (including what he said, the fact that he said it more than once, and Bill’s role, influence and authority in the company).

Jill is one of the women present when Bill made his remarks. Jill believes she has been subjected to a hostile workplace environment by Bill’s conduct. Jill can lodge a complaint against Bill with the Australian Human Rights Commission (AHRC).

Under the proposed changes, the AHRC may only terminate the complaint if Jill waited more than 24 months to lodge the complaint.

Bill could not raise in his defence the fact that he did not direct the statements to Jill and/or did not anticipate that Jill would be impacted by the conduct.

If the complaint didn’t settle at the AHRC conciliation conference, Jill could apply to the federal courts to resolve the matter by an award of compensation or some other remedy. The default position at the end of those proceedings would be that each party would bear their own costs. The court would have the discretion to award costs in special circumstances.

The company will be vicariously liable for Bill’s conduct because Bill is an employee of the company. Jill can name the company as a respondent to her complaint, as well as Bill. The company will have a defence if it can prove it had taken all reasonable steps to prevent its employees from engaging in such conduct.

This would usually require the company to prove that it had:

• a strong and clear policy that prohibited the making of such statements coupled with a procedure to respond to internal complaints about policy breaches in a fair, timely and effective way;
• communicated the policy effectively in the workplace, and made all staff aware of the policy and procedure through regular training;
• ensured a clear, unambiguous and visible support from senior management for the policy; and
• treated all complaints seriously and investigated them promptly.

The AHRC may also initiate its own an inquiry into whether the company had taken reasonable and proportionate measures to eliminate hostile work environments. If it did, the AHRC would look to see whether the company had done any of the above things. If not, the AHRC may recommend that it do so, or issue a compliance notice specifying the actions the company must take. If the company does not comply with the notice, the AHRC may apply to the federal courts for an order to direct compliance with the compliance notice.