Action Now! New workplace responsibilities

Time to act: New workplace responsibilities for leaders

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SUMMARY POINTS

For business owners, leaders and managers, the workplace environment is tough. And it is only going to get tougher come April 2023 (in fact most of 2023). With a very tight labour market and escalating costs of resourcing our leaders will be further impacted with long overdue amendments to the workplace health and safety act and the Anti Discrimination and Human Rights Legislation (Respect@Work) Bill 2022.

Urgency: Now –  April 2023

 

Legislative impacts

Two new regulations commencing in 2023 that will exert serious responsibilities for leaders in the workplace.

  1. WHS – managing psychological hazards in the workplace.
  2. Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Bill) was introduced to Parliament by the Government

 

Actions recommended

  1. Ensure you engage in a culture audit which links to the psycho-social hazards checklist. Identify the gaps in the business and build an action plan to mitigate risks identified.
  2. Without a culture of psychological safety and high levels of trust – assessments and audits are better done externally to ensure people speak up.
  3. There is a responsibility to create a “positive work environment” this means ensuring that contractors, suppliers, subcontractors and employees understand the new rules
  4. Build a communications campaign to ensure everyone understands the new laws, policies and procedures in the organisation.
 
  •  Legislative change further explained
  1. WHS: managing psychological hazards in the workplace.
    • Although work health and safety obligations have always extended to a duty on employers to manage the risks associated with workers’ psychological
    •  health as well as physical health, psychosocial risks have historically not received as much focus under safety legislation or by regulators. This has changed in recent years.
    • Different rules for different states – check laws and regulations for each state.
    • Queensland: The Queensland Government has introduced an independent Code of Practice for managing the risk of psychosocial hazards at work, which is expected to take effect on 1 April 2023 (the QLD Code). The QLD Code is similar to the Model Code but provides more detail on the risk management process for psychosocial hazards, and includes materials such as multi-sector case studies and examples. The Queensland Government has also introduced the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022, which largely mirrors the provisions in the national model WHS Regulations regarding the obligations imposed on PCBUs and control measures for psychosocial risks. This regulation is expected to take effect from the same day as the QLD Code, on 1 April 2023.

 

2.  Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022(Bill) was introduced to Parliament by the Government

       

What are the key changes?

    •  Specific prohibition of hostile workplace environments.
    • positive duty to take reasonable and proportionate measures to eliminate unlawful sex discrimination, including sex discrimination, sexual and sex-based harassment, hostile work environments and victimisation.
    • Conduct is no longer required to be seriously demeaning to be unlawful harassment on the ground of sex – this reduces the threshold and makes it easier for applicants to make out claims of harassment on the ground of sex.
    • The Australian Human Rights Commission (AHRC) gain powers to enforce the positive duty, including with guidelines, education, inquiries, compliance notices, court orders and enforceable undertakings.
    • The AHRC will be able to conduct inquiries into systemic unlawful discrimination.
    • Unions can more easily commence Federal Court representative actions for at least one person – possibly paving the way for class actions.
    • neutral costs approach under which each party will bear their own costs in sexual harassment proceedings.
    • “Sex” or related characteristics only need to be “a reason” for the conduct. They do not have to be the ‘only reason’or the ‘real reason’ and the fact there may be other reasons such as age or race does not prevent the conduct being unlawful.

 

What is the positive duty?

The positive duty requires an organisation to take reasonable and proportionate measures to eliminate, as far as possible sexual harassment, harassment on the ground of sex, hostile workplace environments, or acts of victimisation against persons relating to their complaints, proceedings, assertions, or allegations of any of that conduct.

Reasonable and proportional measures will vary, depending on the circumstances of a particular workplace. It depends on the size, nature and circumstances of the business, the available resources (ie, financial or otherwise), the practicality and costs of those measures and other relevant matters.

For example, larger and better resourced organisations will need to implement more extensive measures.

The Explanatory Memorandum says the new positive duty in the Bill aligns with the exemption to vicarious liability under the Sex Discrimination Act 1974 (ie, as is the case in Victoria). This exemption provides that an employer is not liable for the actions of the employees or agents if the employer has taken “all reasonable steps” to prevent their employees from engaging in the conduct.

On this basis, employers should already take preventative action, but we suspect many may not have done this.

At a general level, the positive duty requires organisations to:

  • Identify and understand potential areas of non-compliance (ie, risk assessment).
  • Develop a strategy for meeting and maintaining compliance (ie, have a prevention plan).
  • Review and improve compliance as reasonably necessary in the organisation’s particular circumstances.

 

Immediate Action for employers (before April 1):

Six (6) Recommended steps for proactivelyPsychological_Safety_IMG2 managing new laws

  1. Reviewing and amending discrimination and harassment policies and procedures consistent with the positive duty and other amendments.
  2. Communication and consultation with all workplace participants, including periodic reinforcement. For example, by emails, intranet releases, toolbox talks etc.
  3. Overt buy-in from senior management who must “walk the talk” and must model best practice bystander
  4. Fair, timely and effective internal complaints procedures which treat all complaints seriously and investigate them promptly. This should be victim-centric.
  5. High quality training, which educates all workplace participants about their discrimination and harassment policies and procedures, including with case studies and interactive activities to embed understanding. Training must give real life examples of behaviours and how victims or bystanders can best respond.
  6. External audit of culture and hazards and risks.
 
* Please note that this does not constitute as legal advice. For legal advice please see a professional legal representative. 

Conduct an Audit today!

Book a People Plus Culture Audit today to identify your risks.

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