In 2018 The Australian Human Rights Commission (AHRC) published findings that a staggering 85% of women had been sexually harassed at work at some point in their lives, yet only 17% of people who were sexually harassed in the workplace in the last 5 years made a formal complaint about it. Even more concerningly, one third of people surveyed had been witnesses, or bystanders, to sexual harassment in the workplace yet only a third of these bystanders took action.
While Australia has had laws against sexual harassment and discrimination for many decades, the problems remain rife – in person, online, between colleagues or strangers. Finally, following the Respect@Work: Sexual Harassment National Inquiry Report published by the AHRC in 2020, the #MeToo movement and the recognition of the enormous cost of sexual harassment in the workplace, substantive legislative change is promised with the introduction of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 on 27 September 2022.
While there are many elements to the Respect at Work Bill, the most significant change is it will introduce a positive duty on employers to take reasonable and proportionate measures to eliminate workplace sexual harassment, victimisation and sex discrimination as far as possible. It will also prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex.
Organisations need to sit up and take action now – the shift in the existing legislative framework from reactive measures to preventative measures to eliminate, as far as possible, unlawful discriminatory conduct will require employers to do more than just implement another standard workplace policy.
What does ‘subjecting a person to a hostile work environment on the ground of sex’ mean
Subjecting a person to a hostile workplace environment includes a requirement that a reasonable person would have anticipated the possibility of the conduct being offensive, intimidating or humiliating to someone by reason of their sex or characteristics that generally appertain or are imputed to persons of their sex.
The circumstances to be considered when determining whether conduct is unlawful include:
- the seriousness of the conduct;
- whether the conduct was continuous or repetitive;
- the role, influence or authority of the person engaging in the conduct; and
- any other relevant circumstance.
What is a positive duty & ‘reasonable and proportionate’ measures
If the Respect at Work Amendment Bill is passed, it will place an onus on employers to take ‘reasonable and proportionate’ measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. The duty will extend to conduct by third parties such as customers or clients. This is very similar in the approach already required for work health and safety risk management and organisations should adopt the same risk management ethos.
The matters to be considered when determining whether the employer is complying with the positive duty include:
- the size, nature and circumstances of the business;
- the duty holder’s resources, whether financial or otherwise; and
- the practicability and costs associated with the steps.
What actions should my organisation take?
Fortunately the Victorian Equal Opportunity Act (2010) requires organisations to have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible. As such the Victorian Equal Opportunity and Human Rights Commission developed a practical guide covering the six minimum standards for different sizes and types of organisations, which is an excellent resource for any organisation to ensure they are being as proactive as they can be in this area. The six standards it addresses are:
- Knowledge – making sure you know your obligations under the Act and what behaviour constitutes discrimination, sexual harassment and victimisation
- Prevention plan – the development and implementation of a plan designed to prevent discrimination, sexual harassment and victimisation from occurring in your workplace
- Organisational capability – do your leaders have the capability to drive a positive culture of respect, including with their customers and suppliers
- Risk management – how does your organisation identify, mitigate, and manage risk
- Reporting and response – ensuring your organisation uses a trauma centred approach and a fair and confidential reporting procedure
- Monitoring and evaluation – making sure outcomes and strategies are regularly reviewed for continuous improvement
How Developing Talent can help
Once the Respect at Work Bill is passed, which is looking very likely, organisations will have 12 months to prepare for these legislative amendments. Developing Talent can tailor its assistance to your organisation depending on its size and needs, including:
- Bystander Training
- Inclusive Recruitment
- Inclusive Leadership
- Review and recommendations for your relevant employment policies
- Equally Yours Learning Map
- Listening sessions
If you would like confidential advice on improving diversity and inclusion in your hiring practices, or how your organisation can be supported to respond to diversity then get in touch. Email us at email@example.com.
If you are looking to improve diversity and inclusion in your organisation, visit our blog for some useful information and resources.
 Australian Human Rights Commission (2018) Everyone’s business: Fourth national survey on sexual harassment in Australian workplaces