In September last year, 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 makes clearer, under the act, that harassing a person on the basis of sex is prohibited. 

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, tabled in Parliament on Tuesday (27 September), signals a significant change in focus of the Sex Discrimination Act 1984 to the systemic prevention of sexual and sex-based harassment, sex discrimination, hostile work environments and victimisation, rather than relying on those impacted by this conduct to make complaints at a time when they are most vulnerable. 

According to Amanda Watt, workplace relations partner at MinterEllison, the bill does this in a number of ways — by imposing a positive duty on employers to eliminate the conduct; by recognising that the elimination of hostile work environments is important to the prevention of sexual harassment; and by enhancing the powers of the Australian Human Rights Commission (AHRC) to enforce the positive duty.  

“The positive duty will make workforces safer. Currently, as the onus is on the person impacted by sexual harassment to report it after it has occurred, it is often too late to help prevention,” she said.

“Employers want to — and can — make workplaces safer. Complying with the positive duty will involve employers revisiting their policies and processes for responding to sexual harassment and, most importantly, the level of transparency as to how sexual harassment will be dealt with through a lens of prevention and cultural change — such as the way non-disclosure agreements are used.”

This legislation has the power to bring “broad-ranging benefits” across the legal profession, according to Clayton Utz partner Amanda Lyras.

“According to the 2019 International Bar Association’s survey and report, Us Too? Bullying and Sexual Harassment in the Legal Profession, the Australian legal profession reports markedly high instances of sexual harassment in the workplace. A substantial 47 per cent of female lawyers and 13 per cent of male lawyers who responded to the survey from Australia reported having experienced sexual harassment at work,” she told Lawyers Weekly. 

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“It is clear we, as a profession, will need to move away from the traditional approach of simply responding to complaints of sexual harassment as they arise. The proactive and preventative approach required by these reforms will promote accountability and assist in encouraging continuous improvement in how the profession addresses these issues.”

The new laws will act concurrently with work health and safety (WHS) and state-based anti-discrimination laws — and whilst the positive duty will apply as soon as the bill is passed, the enhanced powers of the AHRC will not commence until 12 months after the bill is passed. This delay will give employers the opportunity to understand their obligations, make any necessary changes at their workplace, and have the opportunity to consider guidance to be issued by the commission.

“It is clear that further action is required to prevent and address sexual harassment, which has remained prevalent in the legal profession and other industries, despite being unlawful,” Ms Lyras added. 

“Not only will the positive duty (which is the centrepiece of the reforms) drive important change in this space, [but] there has also been a lowering of the bar in terms of conduct that will be unlawful. For example, in order to establish sex-based harassment, it will only need to be shown that there was unwelcome conduct that was ‘demeaning’ in nature in relation to a person’s sex, rather than ‘seriously demeaning’ as recommended by the Australian Human Rights Commission. In addition, the definitions of people that may be involved in a hostile environment are proposed to broadly capture all types of people that may be in the workplace, irrespective of whether they are workers in the usual sense.”

In addition, there is forthcoming best practice guidance from the Respect@Work Council on the use of non-disclosure agreements. 

Ms Watt noted that a new approach to NDAs would carve out the right of the organisation to disclose — both internally and externally in a de-identified way – that a complaint had been made and how it had been dealt with. It would also require any substantiated outcomes to be recorded so it can include that matter in its aggregated data to monitor for any systemic issues.

“NDAs are often negotiated and agreed [upon] at a time when the person impacted is vulnerable and imposes conditions on them to never talk about the matter. This gagging effect impairs the wellbeing of the person impacted and the organisation’s ability to share what has been learned to better inform the prevention of sexual harassment. It enables sexual harassment to occur again,” she said. 

“In this way, a new form of NDA puts the person impacted by the conduct at the centre of the response, and helps to prevent future breaches.”

The legislation also means that individual claimants will be further supported, with claims able to be brought within a 24-month time frame, rather than six months — which Ms Lyras said was an acknowledgement that “there are trauma-informed reasons why it may take some time for complainants to come forward about sensitive matters of this nature”. 

“The proposed legislative reform will have the effect of driving organisations within the legal profession and other industries to shift from a reactive approach in responding to individual claims, to proactively seeking to understand the unique risks of sex discrimination, sex-based discrimination, sexual harassment, hostile work environments and victimisation in their workplaces and implementing controls to manage those risks. 

“This will require a comprehensive ‘whole-of-organisation’ approach to these issues, as well as ongoing monitoring of the relevant risks and controls and making appropriate adjustments to frameworks, in order to discharge the duty. An appropriate response will necessitate more than simply having policies in place and conducting training on those policies,” she said.

“Each organisation’s approach will differ, but there are a range of actions that may be common across the board, including ensuring there is endorsement by leadership of relevant policies, having effective complaints management procedures, assessing reward and consequence management frameworks, and ensuring employees understand that inappropriate conduct will be met with disciplinary action.”