As set out in our earlier insight, on 2 September 2021, the Government passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (the Respect@Work Act).
The Respect@Work Act will introduce key changes impacting governance obligations to prevent and eliminate sexual harassment in the workplace. The legislative changes most relevant to senior management and Boards are as follows:
- The introduction of a new “object” clause inserted into the Sex Discrimination Act 1984 (the SD Act) to achieve, so far as is practicable, equality of opportunity between men and women.
- Recognition that sexual harassment is a workplace health and safety issue.
- The broadening of the scope of the SD Act to adopt the concept of ‘worker’ as used in the Work Health and Safety laws so as to capture all paid and unpaid workers and thereby protect volunteers, interns and those who are self-employed.
- Providing legislative support to sexual harassment constituting conduct justifying a valid reason for dismissal.
- Enabling workers to apply to the Fair Work Commission for an order to stop sexual harassment in the workplace.
These changes recognise the culture and leadership of an organisation can and does have a significant impact on the elimination and prevention of sexual harassment in the workplace. Notwithstanding that matters relating to sexual harassment are sensitive and confidential and often left to senior management to deal with, the elimination and prevention of such conduct should be considered as an important governance issue. The ASX Corporate Governance Council Principles and Recommendations provide that Boards should recognise and manage risk, instil a culture of acting lawfully, ethically and responsibly and express the standards and behaviours it expects from its directors, senior executives and employees.
In light of the changes brought about by the Respect@Work Act, we recommend Board directors:
- ensure governance measures are implemented to ensure lawful, ethical and responsible behaviour;
- provide sexual harassment training to Board members, senior executives, managers ad employees to identify the legal obligations and how to eliminate and prevent sexual harassment in the workplace; and
- require any executives or senior management teams to review and where necessary, update any workplace behaviour policies or codes of conduct to ensure that they adequately reflect the legislative changes and fulsomely address the elimination and prevention of sexual harassment in the workplace.
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