Anti-Discrimination and Human Rights Legislation Amendment

18/01/2023

On 13 December 2022, key provisions in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) commenced, amending inter alia the Sex Discrimination Act 1984 (Cth).

Key changes include new provisions in the Sex Discrimination Act which make it unlawful for a person to subject another person to a workplace environment that is hostile on the ground of sex (section 28M), and a positive duty on all employers and persons conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, specified forms of unlawful sex discrimination under the Sex Discrimination Act, including sex discrimination, sexual and sex-based harassment, victimisation and hostile workplace environments (new Part IIA).

Section 4 of the Sex Discrimination Act provides that a PCBU has the same meaning as in the Workplace Health and Safety Act 2011 (Cth) (WHS Act). Section 5 of the WHS Act defines PCBU as follows:

(1) For the purposes of this Act, a person conducts a business or undertaking:

(a) whether the person conducts the business or undertaking alone or with others; and

(b) whether or not the business or undertaking is conducted for profit or gain.

A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association (WHS Act, s 5(2)). A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking (WHS Act, s 5(4)). The regulations may further specify circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of the WHS Act (s 5(6)).