Changes to the Sex Discrimination Act: the introduction of a positive duty to eliminate sexual harassment and discrimination
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 was passed on 28 November 2022 and has now commenced, introducing amendments to the Sex Discrimination Act 1984 (Cth).
These amendments implement six of the outstanding recommendations from the Respect@Work Report and introduce a new system which focuses on preventative efforts to reduce sexual harassment and discrimination in our workplaces.
Independent schools that have paid employees (as persons conducting a business or undertaking) must now comply with the new positive duty to take ‘reasonable and proportionate’ measures to eliminate hostile workplace environments, including sexual harassment and gender-based discrimination.
There are several factors that will be considered relevant when determining whether a school has taken reasonable and proportionate measures, including the size and resources available to the school, and the practicability and costs of proposed measures.
Reasonable and proportionate measures that could be taken by schools to ensure they meet the duty include:
- consider and identify sources of risk to your employees, volunteers, contractors and agents;
- review your policies relating to standards of conduct and if necessary, implement appropriate policies that deal with sexual harassment and discrimination;
- review and implement appropriate procedures for raising complaints and monitor complaint management and the volume of complaints received;
- actively encourage employees and others to raise complaints and report behaviour they witness or experience that is not appropriate;
- provide support to your workers, and ensure they are aware of support measures to prevent victimisation;
- introduce education and training in regard to the new duty to prevent sexual harassment and discrimination (such as bystander training).
The positive duty extends to conduct engaged in by workers and agents, including contractors and sub-contractors, volunteers and trainees.
The Australian Human Rights Commission will have enforcement and investigatory powers in relation to the new duty imposed by the Act. These powers will include:
- conducting inquiries into compliance with the Act;
- requiring employers to enter into undertakings;
- issuing compliance notices; and
- making an application for enforcement of a compliance notice.
We encourage schools to take steps now to ensure they are complying with the new duty. For assistance in doing this, please contact Stephanie McLuckie.