Laws to implement [email protected] recommendations have passed parliament. What are they?

| 29.11,22. 12:20 AM |

Laws to implement [email protected] recommendations

?have passed parliament. What are they

The legislation says a range of circumstances have to be considered when deciding if behaviour meets the bar of being unlawful, including "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".

The government is also implementing recommendation 16a by making it clear in the sex discrimination act that the purpose is to "achieve substantive equality between men and women" and the intention of 16b, by removing the need for conduct to be "seriously" demeaning.

2. Positive duty on employers

This was one of the key recommendations from the report but it wasn't adopted by the previous government and included in its legislation last year.

The new government has followed recommendation 17 by implementing another change to the sex discrimination act, introducing a "positive duty" on employers.

It basically means that employers will now have to take steps and show, if asked, that they're proactively trying to eliminate sex discrimination "as far as possible".

In her report, Ms Jenkins makes it clear that when deciding if a business has taken the steps the following should be considered:

  • The size of someone's business
  • The nature of their business
  • The business owner's resources
  • The business and operational priorities
  • How practical and/or expensive measures to eliminate discrimination are
  • Any other relevant facts and circumstances

The legislation says measures can include things like implementing policies, collecting and monitoring data, and providing training and support to employees.

Ms Jenkins said the legislation shifted the emphasis from a complaints model to one where businesses had to be proactive, and she urged all employers to start implementing changes now.

3. Enforcing the positive duty

The government has also, in line with recommendation 18, given the Australian Human Rights Commission (AHRC) the ability to oversee whether people are complying with the positive duty obligations and, if they're not, enforce some of the measures.

Parliament has passed new legislation to bring into place seven of the recommendations from the landmark [email protected] report into sexual harassment, including making employers take proactive steps to end harassment, violence and discrimination in the workplace.

The report, from sex discrimination commissioner Kate Jenkins, was released in early 2020 and included 55 recommendations about what could be done to stamp out sexual harassment in Australian workplaces.

Some of those recommendations were about changing federal laws, and while the previous government passed legislation last year to bring about some of the changes, the new government has now passed more of its own.

Here's a rundown on each of the seven recommendations and what's changing.

1. Prohibiting hostile work environments

Recommendation 16c in the original report was that the government should amend the sex discrimination act to make it clear that any conduct or behaviour that created a hostile work environment for someone else based on their sex was prohibited under law.

The government noted that the [email protected] report showed sexual harassment could occur in "sexually charged or hostile" workplace environments even in situations where the behaviour wasn't directed at one person in particular.

"It was noted that conduct such as displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes can result in people of one sex feeling unwelcome or excluded by the general environment," the legislation says.

"The existence of these environments can increase the risk of people experiencing other forms of unlawful discrimination, such as sexual harassment."

Employers will have 12 months before the AHRC's new powers to "monitor and assess compliance" kick in, which the government hopes will give them enough time to make sure they understand what the changes mean and introduce any changes if need be.

As for when the AHRC can start asking a business about its positive-duty measures, the legislation says it can inquire into someone's compliance if it "reasonably suspects" that person isn't complying.

"The commission may form this view based on information or advice provided by other agencies or regulators, information disclosed by impacted individuals, or media reporting, for example," it says.

?YOUTUBEWill [email protected] laws stop sexual harassment

4. Systemic inquiries into discrimination

The main point of implementing recommendation 19 is to enable the AHRC to conduct broad inquiries into systemic unlawful discrimination and try to expose exactly what factors drive it.

"The bill would enable the commission to perform its systemic inquiry functions when requested to do so by the minister or when the commission considers it to be appropriate to do so," the legislation says.

"This would allow the commission to commence an inquiry on its own motion, such as where an organisation has requested it do so or it has become aware of issues relating to an organisation or sector."

5. Representative claims

Previously if a representative body such as a union put a claim on behalf of a group to the AHRC but the claim wasn't resolved, the union couldn't then initiate action in the federal courts on behalf of the group.

With the bill passed, that will no longer be the case, fulfilling recommendation 23 of the report.

"The bill would remove the existing procedural barriers by ensuring that a representative body that has lodged a complaint on behalf of one or more affected persons in the commission (a representative complaint) is able to make an application to the federal courts," the legislation says.

6. Costs protections

According to the [email protected] report and recommendation 25, the risk of ending up with a huge legal bill can act as a disincentive to people who may have considered taking their sexual harassment case to court.

The way cost orders work in court is that costs are usually awarded after a matter is settled, and can see one side ordered to pay for the legal costs of the other.

But working out a way that balances removing hurdles for people who want to take action and making sure people don't drag out claims is a tricky balance.

The government, on the advice of the AHRC, had suggested a "cost-neutrality" approach where each side paid for their fees unless the court decided to impose costs, which it would be allowed to do in certain circumstances.

But late last week the government removed the cost provision part of the bill after listening and consulting with stakeholders who raised concerns about the cost-neutral approach.

Instead, it's referred the issue to the attorney-general's department to be reviewed. The government says it'll legislate whatever cost model the department recommends at the end of its review.

7. Public sector gender reporting

In the same way that private businesses are obligated, under the workplace gender act, to report to the Workplace Gender Equality Agency (WGEA), the public sector will now have to report to WGEA as well.

It means public sector agencies will have to report annually on six key indicators:

  • Gender composition of the workforce
  • Gender composition of governing bodies
  • Equal pay between men and women
  • How available and used flexible working arrangements are to support employees with family or caring responsibilities
  • Consultation with employees about issues around gender equality in the workplace
  • Sex-based harassment and discrimination

This change fulfils recommendation 43a.

Other changes

As well as addressing specific recommendations from the report, the government has also tweaked some of last year's legislation that was passed by the previous Coalition government.

The changes include clarifying that victimising conduct can be the basis of a civil, not just criminal, complaint.

The time frame for people to make a complaint has also been increased from six months after an alleged incident to two years afterward.

The government also agreed to launch a review into the changes it introduced in two years' time.




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