There are major changes expected to workplace sex discrimination law.
The government is currently debating a bill, which if passed, will place obligations on employers to eliminate sex discrimination. These changes come in the wake of high sex discrimination payouts ordered by the Courts.
In this article, we detail the most significant changes which are set to be imposed.
- The Introduction of Hostile Workplace Environments
Workplace discrimination will be widened to include “hostile workplace environments”. This means that employers will have an obligation to eliminate, so far as is possible, discrimination which subjects persons to workplace environments that are hostile on the grounds of sex.
A workplace environment will be hostile if:
- Conduct occurs in a workplace;
- The victim is in the workplace at the same time or after the conduct occurs;
- A reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person of the sex of the victim.
It’s important to recognise that the conduct does not have to actually affect the workplace environment. All that is required is that it had the possibility of doing so.
- The Introduction of a Positive Duty on Employers
There will be new provisions which place positive duties on employers to eliminate sex discrimination. These duties are far more onerous and burdensome than any obligations on employers under the current scheme.
Eliminating unlawful sex discrimination requires employers or any person conducting a business to take reasonable and proportionate measure to eliminate, as far as possible, unlawful discrimination on the grounds of sex. This includes discrimination in offering a position to an employee or a contractor, the terms on which an employee or contractor is engaged, sexual harassment and acts of victimisation (which includes threatening a victim).
- Additional Powers Given to Australian Human Rights Commission (AHRC)
The AHRC will be afforded wider powers and functions to monitor the compliance. The AHRC will be able to investigate an employer’s compliance with their positive duty. During the course of an investigation, an employer will be afforded an opportunity to respond. The AHRC will then make a final decision, which could include issuing a compliance notice. A compliance notice will set out orders which the employer must comply with and the evidence they must produce to prove their compliance.
The AHRC will also be responsible for creating guidelines which will explain the new law and what employers should implement in their businesses. These guidelines will contain far more detail than the information we currently have on the new law. We expect these guidelines to be released shortly after the law is passed.
If you are concerned about your compliance with the new law or the existing sex discrimination laws, please contact a lawyer at Taurus Legal Management on (03) 9481 2000 or firstname.lastname@example.org.