Is your workplace ready to meet the latest recommendations from the [email protected] report?

In short – the Albanian government has introduced the Bill amending the anti-discrimination and human rights legislation (respect at work) 2022 (the Bill) which would impose a positive duty on employers to eliminate, “so far as practicable”, sexual harassment and sex discrimination.

The bill responds to the recommendations of the [email protected] report prepared by the Australian Human Rights Commission (AHRC) in 2020. The report made 55 recommendations to “eliminate” gender discrimination, harassment and victimization in the workplace “as much as possible”.

These were based on findings that 33% of working Australians had experienced sexual harassment at work in the previous five years.

The bill, tabled in Parliament on Tuesday, September 27, 2022, incorporates seven other recommendations from the report (16, 17, 18, 19, 23, 25 and 43). Although the government has not publicly committed to a timeline for second reading, it has indicated that implementing all of the report’s recommendations is a priority.

In particular, this bill aims to impose a positive obligation on employers to prevent sexual discrimination and harassment in the workplace. Attorney General Mark Dreyfus told the House of Representatives:

The focus on preventing sexual harassment and discrimination in the workplace also shifts the responsibility from those who experience this discrimination and harassment to those who are best placed to prevent it: employers.

We have outlined the proposed legislative changes and application for employers below.

Positive obligation to eliminate unlawful sex discrimination

As stated in the explanatory memorandum, Bill 2022 (Cth) 11-16 (EM), the bill seeks to “introduce a positive duty on all employers and PCBUs to take reasonable and proportionate steps” to eliminate unlawful sex discrimination, including sexual harassment, harassment based on sex, work environments hostile work environments and victimization to the extent possible”.

The Australian Human Rights Commission (AHRC) is tasked with enforcing this obligation and is granted broad inquisitive powers – see EM 17-23.

These include the power to initiate investigations when it “reasonably suspects” an employer is not complying. Reasonable suspicion may arise from information or advice provided by other agencies, information disclosed by affected persons or media reports.

The AHRC can also investigate systemic issues “on its own initiative” or at the request of the Minister.

Scope: this will extend to measures which prevent the duty bearers themselves from engaging in unlawful conduct, as well as their employees, workers, agents and otherwise applicable third parties.

Application: what amounts to “reasonable and proportionate measures” will vary depending on the employer. The ME (see (#1) 14) indicates factors that may be taken into account, including:

  • the size, nature and circumstances of the company or business;
  • the manager’s resources, whether financial or otherwise; and
  • the practicability and costs associated with the steps.

Carry: the bill will “likely shift the burden” from workers to employers to take “proactive and preventive measures” – see (#1) 5-10. The explanatory memorandum to the current bill suggested that the new provision would be consistent with the wording of vicarious liability. Employers will need to be able to establish that they “took all reasonable steps” to prevent prohibited behavior in the workplace – see Sex Discrimination Act by. 106(2) (SDA).

This could include, for example, proactive and consistent training initiatives, revising outdated policies or developing new policies.

Additionally, employers should be aware that the bill will increase access to complaints for employees, who now face fewer procedural barriers to making a claim.

Ensure that employees are not subjected to a hostile work environment based on gender

Effect: Sexual harassment can occur when a work environment is sexually charged or hostile, even when the conduct is not directed at a specific individual – see EM (#1) 5-10.

The new provision is to use language consistent with existing provisions under the Sex Discrimination Act 1984 (SDA), so existing case law applies.

Application: a “hostile work environment” is an environment in which:

a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the resulting conduct in the work environment would be offensive, intimidating or humiliating to a person of the sex of the second person because of their sex or characteristics that s ‘generally relate to or are imputed to persons of their sex’

The EM suggests that the following behavior can animate the section: display of obscene pornographic material, general sexual jokes, innuendo – see EM (n 1) 6.

Consideration will be given to:

  • the seriousness of the conduct;
  • whether the behavior was continuous or repetitive;
  • the role, influence or authority of the person engaging in the conduct; and
  • any other relevant circumstances.

Carry: employers must ensure that a culture of discrimination or harassment based on gender has not developed in their workplace.

The bill provides key guidance, indicating that even acts that are not directed against a specific person can be the subject of a complaint. If you haven’t already, it’s time to get rid of that locker room calendar.

Extension of the jurisdiction of representative applications

Effect: the bill also extends the jurisdiction of representative bodies to bring petitions on behalf of persons who have been discriminated against to proceedings in federal courts – see EM (n 1) 29-32.

Carry: Now, if a union-represented employee has their claim terminated at the Human Rights Commission in the first instance, employers will also need to be prepared to eventually defend their claims in federal court.

Cost protection provisions

Effect: the bill incorporates a condition of “cost neutrality” as a default position, offering greater certainty to plaintiffs about the potential costs they may face throughout the procedure – see EM (n 1) 33- 37.

Each party will be liable only for its own legal costs, unless the court deems it appropriate to order other costs.

Factors: In deciding to deviate from the default position, the courts may take into account factors such as the financial situation of the parties and determine whether one of them has been fully successful in its claim.

Takeaway: Employers should be prepared for more empowered and confident employees to file claims of discrimination or harassment.

Additionally, employers can benefit from advancing cooperative defense strategies to increase the chances that they will not face an adverse costs order.

Finally, the bill also proposes to:

  • Implement changes so that victimization can constitute both civil and criminal actions;
  • Modify SDA objects to read: “achieve real equality between men and women; and
  • Amend the SDA provision on gender-based harassment to remove reference to conduct of a “seriously” degrading nature, lowering the threshold for complainants.

The Albanian government is serious about implementing the [email protected] Report recommendations. Employers need to start thinking proactively, rather than reactively, to prevent gender discrimination and harassment in the workplace.

This is a commentary posted by Colin Biggers & Paisley for general information purposes only. This should not be taken as specific advice. You should seek your own legal and other advice on any question, or on any specific situation or proposal, before making a final decision. Content is also subject to change. A listed person may not be admitted as a lawyer in all states and territories. © Colin Biggers & Paisley, Australia 2021.

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