On 2 September 2021, Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021.
The legislation represents the Government’s response to the Sex Discrimination Commissioner’s Respect@Work Report, which was the culmination of an 18-month Inquiry and recommended 55 changes to the law to address sexual harassment in workplaces.
The key legislative changes (due to take effect soon) include:
The legislation incorporates only 6 of the 55 recommendations of the Respect@Work Report.
A key recommendation of the Report that does not feature in the legislation is the introduction of a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in their workplaces as far as possible.
A significant failing of the current legislative scheme is that the onus is placed on victims to complain and seek redress for the harm they have suffered from sexual harassment, rather than placing a positive obligation on employers to prevent that harm from occurring in the first place.
A positive duty requirement would require a proactive and continuous examination of the cultural and systemic factors within workplaces that foster sexual harassment, such as gender inequality, power imbalances, and the underrepresentation of women in leadership.
The failure to adopt this recommendation represents a missed opportunity to enact real change that could help address the prevalence of sexual harassment in Australian workplaces.