Edge Legal
The new Labor government has made good on its promise to implement all of Kate Jenkins’ 55 Respect@Work recommendations by introducing a Bill to Parliament. The Bill is not yet law but its passage is unlikely to be significantly amended.
Key Changes
Consistent with the positive WHS duty to take reasonably practicable eliminate psychosocial hazards, the new Bill imposes on organisations a positive duty to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sex discrimination, sexual and sex-based harassment, hostile work environments and victimisation. What is “reasonable and proportionate” will, like the “reasonably practicable” test in WHS law, depend on the similar measures such as the size, nature and circumstances of the business, the available resources (ie, financial or otherwise), the practicality and costs of those measures and other relevant matters.
The term “hostile workplace environment” has been further explained in the Bill as conduct that results in the workplace environment being offensive, intimidating or humiliating to another person of a particular sex. This appears to be an objective test like bullying (ie the intention of the perpetrator is largely irrelevant but so too are unreasonable responses of the victim). Having said that, the perpetrator does not need to direct their conduct at the person making a complaint or even anticipate the person may be impacted by the behaviour. Repetitive conduct and the seniority of the perpetrator are likely to be aggravating factors.
There has been a weakening of the requirements for sex based harassment (ie a new area of liability which differs from sexual harassment). To that end, the offending sex based conduct is no longer required to be seriously demeaning to be unlawful harassment on the ground of sex. Further, “sex” or related characteristics only need to be “a reason” for the conduct. Such conduct do not have to be the ‘only reason’ or the ‘real reason’.
What to do now
Get management 'buy in’ and then communicate that to your business as part of your overall WHS response
Provide leadership and effective communication to management so that they genuinely understand contemporary expectations
Reinvigorate your staff/ board training to include these new areas
Consider specific bystander and civility training
Retrain contact officers to ensure contemporary understanding
Ensure your grievance/complaint processes can reasonably address these new areas
Conduct a culture review/ risk assessment to identify risk areas
Assess underlying trends and EAP inside and outside the business
Introduce behavioural-based KPIs
Update your policy documents
