New bill aims to protect employees from sexual harassment

The Federal Government introduced a bill last week that aims to protect workers from sexual harassment and discrimination in the workplace.

Known as the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill of 2022, the bill comes from the Respect @Work: Sexual Harassment National Inquiry Report by the Australian Human Rights Commission.

The Report gave 55 recommendations to all government levels and the private sector for legislative and policy reforms to address and prevent sexual harassment in the workplace.

The bill endorses seven suggestions from the compliance report by amending the Sex Discrimination Act of 1984.

Below is the scope of the new bill:

Employers have the responsibility to take all proportionate and reasonable measures to eliminate sexual harassment and victimisation, and sex discrimination. The interpretation of “proportionate and reasonable measures” varies depending on the circumstances and size of the business. Organisations will have 1 year to understand their obligations and apply any changes before compliance and enforcement.

The Australian Human Rights Commission should be strengthened with new functions to assess, monitor, and enforce compliance with the positive responsibility. This provision includes the power to give compliance notices to organisations who are not meeting their obligations, the capacity to conduct inquiries, and enter undertakings with business.

Restrict behaviour that results in a hostile workplace on the basis of sex. An offence called “subjecting a person to a hostile workplace on the grounds of sex” is created in the Report. It may occur where a workplace is “sexually charged or hostile,” even if the behaviour is not directed specifically at any employee. 

Apply cost protections in court proceedings. Parties in unlawful discrimination cases, including sexual harassment, will only bear their own costs rather than also paying for the costs of the other party should they lose the case. The Courts would still have the discretion, however, to make orders as to costs where they consider it fair to do so.

Present a new right for unions to send claims in Federal Court. Unions would now be able to make applications on behalf of individuals alleging sexual harassment and other forms of discrimination in the Federal Courts rather than the current position which only allows the initiation of complaints on behalf of workers.

Establish systematic inquiries. The Australian Human Rights Commission will investigate alleged unlawful behaviour such as systematic sexual harassment. It will require employers to provide documents and information related to the case.

Simplify the dismissal period for complaints. Complaints will be terminated if it relates to conduct that happened more than 2 years before the making of the complaint. This change is aligned with the Age, Sex, Disability and Racial Discrimination Acts.