In September 2024, the Parliament of Queensland passed legislation that substantially expands obligations on employers to identify, eliminate and prevent unlawful discrimination, sexual harassment, and other objectionable conduct from occurring in their workplaces.
Overview
On 10 September 2024, the Queensland Parliament passed the Respect at Work and Other Matters Act 2024 (Qld) (“Respect at Work Act”), which amends the Anti-Discrimination Act 1991 (Qld) (“ADA”). Separately, in September 2024 the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (“WHS Amendment Regulation”) was passed to amend Queensland’s work health and safety (“WHS”) laws.
The Respect at Work Act substantially expands obligations on employers in Queensland to eliminate all forms of unlawful discrimination, harassment and other objectionable conduct in the workplace.
The WHS Amendment Regulation has broadened the scope of WHS obligations to include the physical and psychological harm that may be caused by sexual harassment in the workplace.
Respect at Work Act
The Respect at Work Act implements a number of obligations that were introduced by the Federal Government in response to the Respect@Work report published by the Australian Human Rights Commission and introduces additional obligations that go beyond the requirements on employers under Federal legislation.
The key features of the Respect at Work Act, which comes into effect on 1 July 2025, are as follows:
- The Respect at Work Act imposes a positive duty requirement on employers to eliminate all forms of unlawful discrimination, harassment and other objectionable conduct;
- The ‘protected attributes’ covered by the ADA, which are the grounds upon which unlawful discrimination claims are made and currently includes grounds such as race, age, and sex, will be expanded beyond the current scope. ‘Homelessness’, ‘expunged conviction’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’ and ‘subjection to domestic or family violence’ will all constitute protected attributes for the purpose of the ADA;
- The introduction of a reverse burden of proof – meaning that, if a worker that alleges unlawful discrimination is able to establish that their case is arguable at face value, the employer will then be required to prove that the impugned conduct was not for a prohibited discriminatory reason – similar to the reverse burden of proof in general protections applications;
- The timeframe for bringing all complaints under the ADA will be extended to two years; and
- The Queensland Human Rights Commission will have expanded powers to investigate compliance with positive duty obligations and take enforcement action in the event of systemic contraventions.
The ‘positive duty’ obligation is a term with which employers are likely already familiar, in the context of the positive duty imposed on employers to eliminate workplace sexual harassment introduced at a Federal level in December 2022. The Respect at Work Act goes beyond this obligation, imposing a positive duty on employers to eliminate all forms of conduct that is prohibited by the ADA including unlawful discrimination on the basis of a worker’s race, sex, gender identity, disability, religious and political views, and other ‘protected attributes’ including those new attributes outlined above.
We note that the Explanatory Memorandum to the Respect at Work Act provides some guidance on actions that will help an employer comply with its positive duty obligations, including:
- Implementing organisational policies with respect to respectful and appropriate workplace behaviour;
- Ensuring easily accessible information is available;
- Conducting workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination, and whether such conduct has been experienced or witnessed in the workplace;
- Investigating complaints in accordance with a company procedure that is person-centred and trauma-informed, and disciplining individuals that have contravened these expectations appropriately; and
- Managers and leaders clearly articulating expectations of appropriate behaviour to staff.
In addition, we recommend that employers implement training for its workforce at large and specialist training for managers, on the positive duty and the role each plays in ensuring the employer meets its legislative obligations in this regard. We further anticipate that the Queensland Human Rights Commission will publish additional guidance to assist employers with complying with their positive duty obligations.
Practical Tip: although the above amendments do not take effect until 1 July 2025, now is the time for employers to ensure that their policies and procedures are being reviewed and updated to ensure that they will meet the employer’s requirements pursuant to the positive duty obligations.
WHS Amendment Regulation
As a refresher, WHS laws impose obligations on persons conducting a business or undertaking (“PCBUs”) to identify and control risks to the physical and psychological safety and wellbeing of all workers (which is not limited to employees and includes contractors, trainees, and volunteers) within the workplace. While in our view, sexual harassment and gender-based discrimination already falls under a number of physical and psychosocial risks that must be managed by PCBUs, the WHS Amendment Regulation confirms that this is the case and imposes a number of requirements on PCBUs in this regard.
The WHS Amendment Regulation will take effect in two stages, with the first stage already in effect. The first stage requires that PCBUs in Queensland:
- Expressly manage the risk to WHS from sexual harassment and gender-based discrimination in the workplace;
- In determining control measures to eliminate or mitigate these risks, have regard to all relevant matters including the characteristics of the workers, the workplace and the environment; and
- Review and revise control measures where a report of sexual harassment or gender-based discrimination is made.
The second stage, which will come into effect on 1 March 2025, requires all PCBUs to prepare and implement a prevention plan that manages identified risks of sexual harassment and sex-based discrimination in the workplace (“Plan”). Consistent with management of other WHS risks and as per guidance issued by WorkSafe Queensland, such a Plan ought to:
- Refer to relevant legislation, including Federal and State-based anti-discrimination and WHS laws, and the policies and procedures of the PCBU;
- Identify and assess risks relating to sexual harassment and sex-based discrimination in the workplace;
- Identify controls to eliminate, or, if elimination is not possible, mitigate these risks;
- Outline the specific responsibilities of the PCBU, its officers, management, and workplace participants more generally in relation to the Plan;
- Define how consultation between the PCBU, its officers, WHS leaders, employer representative groups, and workplace participants more generally will occur in relation to the Plan;
- Outline how a complaint about perceived sexual harassment or sex-based discrimination may be made, and what process the PCBU will follow in investigating such complaints; and
- Describe how documents and records in relation to complaints shall be maintained.
Companies are required to introduce a plan by 1 March 2025, and thereafter review and update their Plan whenever:
- a report of sexual harassment or gender discrimination is made;
- a new hazard or risk is identified;
- before a workplace change that is likely to give rise to a new or different risk that the Plan does not effectively control;
- when a WHS Representative asks for the Plan to be reviewed; or otherwise,
- once every three years.
Practical Tip: some aspects of the WHS Amendment Regulation are already in effect, and PCBUs in Queensland must ensure that they are identifying risks of sexual harassment occurring in their workplace, and establishing controls to eliminate or mitigate these risks. We recommend that PCBUs turn their attention immediately to preparing a Plan for implementation by 1 March 2025.
Final Observations
We recommend that employers in Queensland take immediate steps to evaluate their preparedness for the upcoming changes. In this regard, it is our preliminary view that the following actions should be taken by employers in Queensland in the coming weeks and months:
- Reviewing current policies and procedures relating to anti-discrimination and harassment, workplace health and safety, appropriate workplace behaviour, equal opportunity, and complaint resolution processes, to ensure that these policies and procedures foster a workplace culture that is safe, respectful and inclusive;
- Identifying and eliminating/mitigating risks of sexual harassment in the workplace;
- Commencing the drafting of a Plan to take effect on 1 March 2025;
- Ensuring that clear and adequate reporting processes are in place and reflect a person-centred and trauma-informed approach to dealing with complaints of discrimination, sexual harassment and other objectionable conduct;
- Collecting appropriate data to understand the nature and extent of relevant conduct within the workplace, such as through anonymous surveys; and
- Conducting workplace training across the board, including at senior leadership level, to middle managers and WHS representatives, down to all workplace participants, such that everyone understands their obligations and the company’s behavioural expectations moving forward.
For employers that operate in multiple states including Queensland, the business will need to consider whether the aforementioned policies and procedures are updated with respect to their operations in Queensland only, or whether these changes should be proactively applied at a national basis.
If you require assistance identifying and implementing the above changes, please do not hesitate to contact the writers.
This alert is not intended to constitute, and should not be treated as, legal advice.