New 'positive duty' laws to create safer, more respectful workplaces

The introduction of a positive duty on employers and other related reforms marks a significant step forward in the creation of safe and respectful workplaces that are free from abuse, harassment or discrimination.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) passed the Federal Parliament on Monday, implementing all outstanding legislative recommendations of the Respect@Work report.

Under the new laws, employers will have a duty to stop sex discrimination and harassment in their workplaces before it happens – and be monitored for compliance.

These changes send a welcome message that sexual harassment is both preventable and everyone’s business.

‘This is a significant reform that mandates that employers take proactive steps to ensure the safety of their employees,’ said Melanie Schleiger, Program Manager, Equality Law Program.

‘They now rightly bear the responsibility of taking reasonable and proportionate measures to eliminate discriminatory conduct from workplaces, whether by themselves or by the workers they employ.’

‘As a member of the Power to Prevent Coalition, which has been advocating for the implementation of all 55 recommendations of Respect@Work report since it was handed down in 2020, this is an important moment.’

‘Everyone deserves to go to work in places that are safe and respectful and where complaints are taken seriously.’

‘These new laws will help make that a reality.’

The Power to Prevent Coalition, which includes diverse community organisations, unions, academics, peak bodies, health professionals, lawyers and victim-survivors around Australia, will monitor the impact of the changes and assess any further reforms needed.

Strengthening protections for employees

The Bill addresses one of the core findings of Respect@Work which found that our laws were ‘no longer fit for purpose’ and employers should be required to take active measures to prevent sexual harassment.

It provides the Australian Human Rights Commission (AHRC) with new powers to issue compliance notices and enter into and enforce specific undertakings, as recommended by Respect@Work.

It also enables the AHRC to inquire into and report on issues of systemic unlawful discrimination in any circumstance where it impacts on workers in a continuous and repetitive pattern.

Individual workers will also be able to more easily make complaints by authorising a representative body to act on their behalf in applications to the federal courts.

‘We see the effects of sexual harassment on people around Australia every day and how our systems are failing them,’ said Melanie.

‘These are much-needed changes that will help foster gender-equal and inclusive workplaces.’

Respect@Work highlighted the disproportionate impacts sexual harassment has on women, particularly Aboriginal and Torres Strait Islander women, women of colour, women with disability, younger and older women, those in low paid or insecure work, and on LGBTIQ+ communities.

Continuing the journey of reform

In particular, Victoria Legal Aid supports the call for a review of the costs issue within six to 12 months, as recommended by the Legal and Constitutional Affairs Legislation Committee.

We have long recommended the introduction of an equal access model – similar to the approach to costs taken in whistleblower laws – where complainants would not face adverse costs orders if they lost their claim, unless it is deemed frivolous, vexatious or without foundation.

‘We need to change the culture so that people aren’t deterred from bringing sexual harassment complaints, especially when we know so many are reluctant to report incidents, let alone seek legal recourse,' said Melanie.

While there remain areas for reform, we see the bill as a significant achievement that will help make workplaces safer for everyone.

We look forward to maintaining the momentum and working collaboratively to progress this important work.

Media enquires

For media queries, contact Senior Communications Advisor Crys Ja on crys.ja@vla.vic.gov.au, 0457 485 780 or (03) 9280 3858.