Recent changes in workplace harassment and discrimination legislation arising from the Respect@Work: Sexual Harassment Inquiry Report 2020 sees the Agency Statutory Declaration updated to reflect the new responsibilities in Australian Workplaces. You can read details of these changes below.

Therefore, Australian operating agencies downloading this Agency Statutory Declaration will need to ensure they have this latest version from December 12, 2023.

Finally, if you are interested in having workplace specialist lawyers undertake a business health check for your business, please contact us here. The health check includes an audit on internal on and external documentation relating to your business to ensure compliance with the current and relevant legislation.

In late 2022, legislative reforms gave rise to recommendations set out in the Respect@Work: Sexual Harassment Inquiry Report 2020 being enacted into workplace harassment and discrimination legislation. There was a 12-month grace period after the Royal Assent on 12 December 2022 for workplaces to implement changes so that they can comply with the new laws.

The additional obligations that employers will have to comply with in relation to workplace discrimination and harassment legislation are set out below.

Positive duty to eliminate sexual harassment.

There is a positive duty on employers to take reasonable and proportionate measures to eliminate sexual and sex-based harassment, hostile environments, and victimisation. Essentially, the onus has been shifted onto the employer to take steps to mitigate and eliminate workplace sexual harassment.

If an employer is found to have been negligent and failed to implement the necessary processes and procedures to prevent the sexual harassment conduct from arising in the first instance, the employer may be held liable for their lack of action.

Hostile environment

Under section 28M of the Sex Discrimination Act 1984 (Cth), it is unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex.

A workplace that is hostile on the ground of sex occurs where a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the aggrieved person’s sex by reason of:

1. the sex of the aggrieved person;
2. a characteristic that appertains generally to the persons of the sex of the aggrieved person; or
3. a characteristic that is generally imputed to persons of the sex of the aggrieved person.

In determining whether a person has engaged in such conduct, the factors to be taken into account include but are not limited to:

1. the seriousness of the conduct;
2. whether the conduct was continuous or repetitive;
3. the role, influence or authority of the person engaging in the conduct; and
4. any other relevant circumstance.

Enforcement of Compliance

Under the legislative reforms, the Australian Human Rights Commission (AHRC) have been given additional and a wider scope of powers to monitor and ensure employer compliance with the positive duty obligation.

Some of the additional powers granted to the AHRC include but are not limited to:

1. investigate employer compliance with the positive duty obligation by exercising their discretion (acting reasonably);
2. propose recommendations to employers;
3. issue compliance notices to employers specifying actions that the employers must take or refrain from taking to ensure they comply with their obligations; and
4. make applications to the Federal Court, Federal Circuit or Family Court of Australia to enforcement a compliance notice imposed on an employer.

Threshold for sexual harassment

The threshold for sexual harassment has been reduced so that the unwelcome conduct only has to be of a “demeaning nature”. Previously, the threshold was of a “seriously demeaning nature”.

Victimising conduct

The Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth) and Age Discrimination Act 2004 (Cth) have been amended to make provision for victimising conduct to form part of a civil action for unlawful discrimination, in conjunction with a criminal offence under the Sex Discrimination Act.

Extension of timeframes for complaints

Any complaints made under the Disability Discrimination Act, Racial Discrimination Act and Age Discrimination Act may now only be terminated by the AHRC if more than 24 months have passed since the alleged unlawful conduct. This is now consistent with the Sex Discrimination Act. Previously, the timeframe for the AHRC to terminate complaints was 6 months.

Commonwealth public sector reporting

The Workplace General Equality Act 2012 (Cth) has been amended to mandate commonwealth public sector organisations and agencies to report to the Workplace Gender Equality Agency.

Secure Jobs Bill

There has been an express prohibition on sexual harassment in connection with work inserted in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022.

In addition to the above criteria taken into consideration by the Courts, there are further factors and circumstances which must be considered in determining the nature of the engagement.