Australian Legal & Regulatory Developments to Improve Organisational Cultures
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Legal Development 27 February 2024 27 February 2024
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UK & Europe
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People challenges
Warning: This article discusses sexual harassment, gender-based harassment and sexual assault, and may be distressing to some people.
In 2018, the Australian Human Rights Commission (AHRC) undertook a national inquiry into sexual harassment in the workplace. The ensuing 2020 Respect@Work Report (the Report[1]) found that existing legal and regulatory frameworks for addressing this issue placed far too great a burden on complainants and were too complex to navigate. The Report made a series of recommendations for legislative reform designed to provide a more effective approach to the issue of workplace sexual harassment.
Regulatory Background
Over the last couple of years, concurrent and overlapping jurisdictions have addressed this area. The Fair Work Commission obtained additional powers to issue stop sexual harassment orders and resolve sexual harassment disputes. The AHRC gained compliance and enforcement powers over the positive duty to eliminate sexual harassment under the Sex Discrimination Act 1984 (Cth) (SDA). Commonwealth, State and Territory health and safety regulators are increasingly exercising their compliance and enforcement powers in the context of psychosocial risk regulations under the WHS Laws[2]. In this article, we explore some of the recent overlapping legislative and regulatory developments.
Understanding what constitutes sexual harassment
In the Australian context, a person sexually harasses another person if they make an unwelcome sexual advance or an unwelcome request for sexual favours or engage in other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated, or intimidated.
The Positive Duty to Eliminate Sexual Harassment
Since 12 December 2022, under section 47C of SDA, there has been a new positive duty of care placed on employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate, so far as possible, discrimination, sexual harassment, sex-based harassment and hostile working environments[3] (Positive Duty), with enforcement powers coming into effect on 12 December 2023.
In August 2023, the AHRC issued Guidelines for Compliance with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (Positive Duty Guidelines) which set out a new workplace prevention and response model structured around seven standards.
| Standard No. | Standard Topic | Requirement |
|---|---|---|
| 1 | Leadership | Senior leaders understand their obligations under the SDA through up-to-date knowledge about relevant unlawful conduct. |
| 2 | Culture | Organisations foster a safe, respectful, and inclusive culture that values diversity and gender equality. |
| 3 | Knowledge | Organisations develop, communicate, and implement a policy and training regarding respectful behaviour and unlawful conduct. |
| 4 | Risk Management | Organisations recognise that relevant unlawful conduct is an equality and health and safety risk and approach prevention and response accordingly. |
| 5 | Support | Organisations ensure that appropriate support is available to all workers who experience/witness relevant unlawful conduct. |
| 6 | Reporting & Response | Organisations offer appropriate options for reporting/responding and regularly communicate them. |
| 7 | Monitoring, Evaluation & Transparency | Organisations collect appropriate data to understand relevant unlawful conduct at their workplace. |
Since 12 December 2023, the AHRC has the power to enforce compliance with the Positive Duty through inquiries, compliance notices, enforceable undertakings[4] and applications to the Federal Court for AHRC compliance notices. Those orders and undertakings could include requirements for organisations to change their procedures or conduct, remedy the damage caused by any non-compliance and commit to future compliance measures.
In December 2023, The AHRC also issued a Compliance and Enforcement Policy for the Positive Duty.
Understanding Sexual Harassment Through the Lens of Psychosocial Hazard Management Regulations
Following the Boland Review, since 2022, most jurisdictions[5] around Australia have introduced regulations on psychosocial hazards[6]. A psychosocial hazard is defined as a hazard that arises from the design or management of work, a work environment, workplace interactions or behaviours that may cause psychological harm.
The Model WHS Regulations version of the Psychosocial Regulations[7] sets out that PCBUs have an obligation to identify and eliminate psychosocial risk, implement control measures to eliminate and minimise it, all while having regard to numerous factors which include the design, layout, and environmental conditions of the workplace, and the systems of work, including how work is managed, organised, and supported.
The requirements expressly require organisations to conduct a documented risk assessment when it comes to psychosocial hazards and risks. A series of common psychosocial hazards is further outlined in the Safe Work Australia Model Code of Practice – Managing Psychosocial Hazards at Work (July 2022) (Psychosocial Code).[8]
In December 2023, Safe Work Australia issued a Model Code of Practice on Sexual and Gender-Based Harassment (Sexual Harassment Code) which provides further guidance on how to proactively manage risk, with express examples. This follows the introduction in June 2021 of ISO 45003:2021 - Psychological Health and Safety at Work: Guideline for Managing Psychosocial Risks.
Fair Work Commission Power to Issue Stop Sexual Harassment Orders
From 11 September 2021, The Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth) (Respect at Work Act) gave the Fair Work Commission (FWC) express power to deal with applications for orders to stop sexual harassment under the Fair Work Act.
With the further reforms of Part 8 of the Secure Jobs Better Pay Act, from 6 March 2023, individuals can choose to apply to the FWC to issue stop orders, deal with a dispute about sexual harassment, or both. Applications can be made by aggrieved persons no longer connected to the workplace although the application may be rejected if the conduct alleged occurred more than two years prior.
What Your Organisation Needs to Do
As a minimum, to comply with the obligations now contained within the overlapping regulatory frameworks, there is a need for organisations to:
- Provide leadership briefings on what is required from senior leaders to foster a positive workplace culture and arrange the necessary resources to implement this.
- Conduct a psychosocial hazard and risk assessment gap analysis.
- Consult with workers in conducting that gap analysis activity
- Develop and maintain a Sexual Harassment Prevention and Response Plan
- Review current policies and procedures and update them to reflect the requirements of the Guidelines and the Prevention and Response Plan.
In our view, conducting psychosocial safety culture surveys and maturity assessments can be beneficial. Getting a pulse on your current culture is an essential first step to eliminating sexual harassment and fostering meaningful systemic change.
[1] Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (2020).
[2] Model WHS Regulations | Safe Work Australia
[3] Often described as unlawful conduct.
[4] Again, this demonstrates an alignment of approaches with the WHS Laws as there is also an enforceable undertakings regime within the WHS Laws.
[5] The current exception is Victoria which has undertaken consultation on such regulations but not yet introduced them.
[6] See recommendation 2 of the Boland Review into the Model WHS Laws, final report, December 2018.
[7] See regulations 55A to 55D of the Model WHS Regulations.
[8] The Psychosocial Code has been implemented in several jurisdictions (including NSW, Western Australia, Queensland).
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