New WHS laws grant unions class action powers
Parliament passes bill to support employees against sex-based discrimination and harassment in the workplace
On November 28, 2022, the Respect At Work Bill amending the Sex Discrimination Act 1984 passed both Houses of Parliament. It now awaits royal assent before becoming legislation.
This landmark amendment places new duties on employers and grants representative bodies, such as unions, the power to bring class actions against companies based on gendered discrimination.
Employers now have a positive duty — a high obligation — to take reasonable steps to eliminate sex-based harassment or discrimination. This includes a prohibition against subjecting their employees or contractors to hostile work conditions; employers must actively maintain a diverse and welcoming workplace culture.
The amendment introduces a nuanced mechanism for class actions regarding unlawful discrimination. Prior to the amendment, unions could make representative complaints to the Australian Human Rights Commission on behalf of people in an organisation. However, the new law now grants unions direct access to federal courts with powers to bring class actions against an organisation.
The law will amend definitions to lower the threshold for criminal offences such as harassment. Harassment on the ground of sex must be held as “demeaning” rather than “seriously demeaning”, lowering the barriers for the prosecution to succeed. Representative bodies can also take employers to court for victimisation — when employees are discriminated against after making a complaint about workplace culture.
These changes come in the wake of the Respect@Work Sexual Harassment National Inquiry report (2020). This report outlined the prevalence of sexual harassment in Australian workplaces and suggested improvements to the contemporary legislative frameworks.
The changes were a key campaign promise of the Labor Party in the 2022 Federal Election. They were passed alongside more widespread reform to industrial relations law, including the introduction of some forms of multi-employer bargaining.
On the increased power for unions, a spokesperson from Unions NSW said:
“Class actions allow people with limited financial means access to justice without imposing unreasonable financial barriers.
The capacity for organisations such as Unions NSW to more easily form class actions is a welcome if overdue reform.”