The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 was passed by both Houses of Parliament on 28 November 2022. Royal Assent was given on 12 December 2022.

Under the changes, the Australian Human Rights Commission will be equipped with a range of new regulatory tools to monitor and enforce compliance with the positive duty to eliminate unlawful sex discrimination in workplaces.

There is a 12-month transitional period until 11 December 2023 before the Australian Human Rights Commission’s new monitoring and compliance function with respect to the positive duty takes effect.

A new respectatwork website provides free access to a comprehensive range of resources for employers and workers.

Positive duty on all employers

The Act inserts a new provision in the Sex Discrimination Act 1984 (SD Act) to introduce a positive duty on all employers to take “reasonable and proportionate measures” to eliminate unlawful sex discrimination, including sexual harassment, as far as possible, including sex discrimination, sexual and sex-based harassment, hostile work environments, and victimisation.

This would require measures to be taken to prevent this conduct from being engaged in by employers themselves, as well as their employees, workers and agents, and third parties, where applicable. This may involve implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.

Prohibition of hostile workplace environment

The amendments made by the Act include inserting a new provision in the SD Act to prohibit conduct that subjects another person to a workplace environment that is hostile on the ground of sex.

The meaning of subjecting a person to a hostile workplace environment includes a requirement that 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 sex of the second person 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 the 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.

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