October 22, 2024

Employers face a real prospect of being 'named and shamed' in the Queensland Parliament if they fail to comply with a new positive duty to stamp out discrimination in the workplace from 1 July 2025.

On 19 September 2024, the Queensland Parliament introduced theRespect at Work and Other Matters Amendment Act 2024 (the Act) introducing significant changes to the Anti-Discrimination Act 1991 (Qld) (ADA). The changes commence on 1 July 2025, and implement key reforms recommended by the Australian Human Rights Commission (AHRC)'s Respect@Work Sexual Harassment National Inquiry Report (2020) and the Queensland Human Rights Commission (QHRC)'s Building Belonging: Review of Queensland's Anti-Discrimination Act 1991 report.

The Act expands the circumstances in which the QHRC can conduct investigations into suspected systemic contraventions of any of the protected attributes under the ADA. The changes also enable reporting on investigations into all types of systemic contraventions and investigations into compliance with the positive duty by the QHRC.

After an investigation, the QHRC will have the power to prepare a report and give it to the Minister for Justice, who must then table the report in Parliament within six sitting days of receiving it, or publish the report.

The measure will work as a very real incentive to employers to take their obligations in relation to sexual harassment and all forms of discrimination seriously, or face potentially devastating reputational damage. More generally the Act means Queensland's anti-discrimination regime is set to become the strictest of any Australian jurisdiction.

Key changes include:

1. a new positive obligation on employers to eliminate sexual harassment and harassment on the basis of sex, discrimination and associated objectionable conduct;

2. specific prohibitions on harassment on the basis of sex in work and subjecting a person to a work environment that is hostile on the basis of sex, mirroring the federal Sex Discrimination Act 1984 (Cth) (SDA);

3. updated definitions for direct and indirect discrimination, broadening the application of the ADA;

4. additional protected attributes of 'expunged conviction', 'homelessness', 'irrelevant criminal record', 'irrelevant medical record', 'physical appearance' and 'subjection to domestic or family violence', and a combination of two or more attributes', and amended definitions for other attributes of carer or kinship responsibilities, parental status, race, and sexual orientation;

5. broadened prohibitions against public acts of hate or vilification on the grounds of a person's age, gender identity, impairment, race, religion, sex, sex characteristics or sexual orientation;

6. expanded powers for the QHRC; and

7. extended time for making a complaint under the ADA to 2 years.

Further changes are likely on the horizon, with the Queensland government committed to advancing a second stage of reforms following further consultation.

The amendments are wide-reaching, with some of the most onerous requirements for businesses likely stemming from the new expansive positive duty.

Sexual harassment in the workplace

In recent years, sexual harassment and the associated psychosocial risks have featured in the labour law spotlight. Although Australia was once a leader in addressing sexual harassment, contemporary reports indicate that unlawful conduct remains prevalent in workplaces. A 2022 survey by the AHRC revealed that one in three people experienced sexual harassment at work in the five years prior to the report. Despite this, reporting on sexual harassment remains low, with fewer than one in five people making a formal complaint in that period.

In Queensland, the Liberal National Party recently referred allegations of rape, sexual harassment and domestic violence within a Queensland State Government Department to the Crime and Corruption Commission for independent investigation, 10 years after an inquiry into sexual harassment and workplace bullying found that women had been "failed" by the Department.

Sex Discrimination Commissioner, Kate Jenkins, stated that the legal and regulatory system was no longer fit for purpose and required a new model that improves the coordination, consistency and clarity between the anti-discrimination, employment and work health and safety legislative schemes. The new positive duty under the Act appears to be intended to address this imperative.

The positive duty

Queensland employers now have a duty to take "reasonable and proportionate" measures to eliminate discrimination on the basis of all protected attributes, sexual harassment, harassment on the basis of sex and other objectionable conduct as far as possible, meaning that employers will be tasked with eliminating discrimination on the basis of age, race, disability, among other attributes, in addition to sex. The duty extends further than the existing federal duty under the SDA.

Factors such as the size, nature and circumstances of a business may be considered in determining what is reasonable and proportionate, recognising that the requirements for compliance for a small business owner may be different from those of larger businesses.

Interestingly, the changes do not alter the exemptions for religious organisations already contained in the ADA. Religious organisations will only be subject to the positive duty to the extent that they already have a duty under the ADA to not engage prohibited conduct.

Extended powers of the Queensland Human Rights Commission

The QHRC has also been granted additional powers in relation to the positive duty. The QHRC can:

• conduct investigations into suspected non-compliance with the positive duty or systemic contraventions of the ADA, being contraventions that are against a class or group of persons and are continuous, repetitive or form a pattern;
• accept enforceable undertakings to comply with the positive duty, and in cases of continued non-compliance, issue a compliance notice and bring an action in the Queensland Civil and Administrative Tribunal for breach; and
• publish reports on investigations, and more generally, issue and publish guidelines on complying with the positive duty.

What can businesses do to respond to the positive duty?

The AHRC has extensive guidelines for complying with the positive duty under the SDA. The QHRC is expected to follow suit for the positive duty under the ADA.

In the meantime, businesses should consider:

1. preparing a written Prevention and Response Plan outlining measures the business intends to take to discharge the positive duty;
2. undertaking risk assessments for unlawful conduct and sexual harassment in the workplace, to determine necessary measures, and consult workers on these measures;
3. ensuring that the policies on unlawful discrimination and sexual harassment are up to date;
4. ensuring that senior leaders understand their and the business' obligations under the ADA, and have up-to-date knowledge about unlawful conduct and sexual harassment; and
5. ensuring that employees are educated on relevant policies, and undergo training in relation to appropriate workplace conduct.