The federal government’s Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Respect@Work Act), which came into effect in January 2023, marked a significant shift in focus of the Sex Discrimination Act 1984.

The new law introduced a new positive duty on employers and organisations to proactively prevent sexual harassment, expressly prohibits hostile workplace environments, and expands the powers of the Australian Human Rights Commission.

It also expanded the powers of the Fair Work Commission to deal with sexual harassment.

In September 2021, over 19 months after the Respect@Work report was handed down, Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, which officially made sexual harassment a sackable offence and made clearer, under the act, that harassing a person on the basis of sex is prohibited.

Ms Abraham said the new laws have had a positive impact on workplaces as they have underscored that sexual harassment and discriminatory behaviour will not be tolerated. This has provided employees with more rights and protections and made it easier for them to report these incidents.

“It has also put more of an obligation on employers to take steps to prevent and address any harassment or discrimination issues,” she told Lawyers Weekly.

“We’re hopeful that workplaces are going to become more respectful and inclusive as a result of these changes.”

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At the Women in Law Forum 2023, Ms Abraham will unpack the obstacles female legal professionals face and provide solutions for designing a future-fit workplace that fosters genuine equity.

However, Ms Abraham highlighted that the laws have not yet delivered the desired impact that many had hoped for.

Outlining her reasoning for this assessment, Ms Abraham said that despite the introduction of the legal framework, it is challenging to convince employers and organisations to take serious action against harassment and discrimination.

For example, under the Fair Work Act, a person or company may be liable for sexual harassment committed by an employee or agent in connection with work, including if they were involved in the employer’s contravention.

This applies unless the person or company can prove that they took all reasonable steps to prevent the sexual harassment.

Sexual misconduct could be considered serious misconduct and can be a valid reason for dismissal, according to the Fair Work Ombudsman website.

“But speaking to employment lawyers in the field, it seems there’s a bit of a struggle to convince clients and employers that going down the track of disciplining individuals for such behaviours is worth the effort,” Ms Abraham said.

Another challenge is the lack of awareness about the Fair Work Commission’s (FWC) provision to receive applications to stop bullying at work under the Fair Work Act, Ms Abraham highlighted.

The laws to stop bullying under the Fair Work Act apply to employees, interns, and contractors or subcontractors, among others.

“It looks like there aren’t many people who are aware of these provisions at the national workplace relations tribunal until they personally experience harassment,” Ms Abraham said.

“Even then, they might be quite reluctant to use these mechanisms because they’re afraid of retribution. I suppose there’s an inherent fear of rocking the boat and causing a bit of fuss. That’s still a significant obstacle to how well these laws have been implemented and how they’re changing workplace culture.

“The legal profession is still pale, male, and stale, for lack of a better phrase. The legal profession is very deeply rooted in tradition. You’ve got the head honchos having done things one way, and it is difficult [to change that].”

As such, it is essential to not only enact laws but also actively promote awareness and education about the laws across all communities, Ms Abraham insisted.

She concluded: “While we’re heading in the right direction, if you want to bring about a true seismic cultural shift, there has to be ongoing efforts to spread awareness of these laws to the wider public.”

“You also need better implementation and follow through by organisations and employers for there to be an impact. If people know that a law exists but have no fear of it being enforced against them, they’re going to keep perpetuating that behaviour.”

To hear more from Joanna Abraham about how we could reimagine the legal landscape to achieve gender equity, come along to the Women in Law Forum 2023.

It will be held on Thursday, 23 November 2023, at Crown Melbourne.

Click here to buy tickets and don’t miss out!

For more information, including agenda and speakers, click here.