On 28 November 2022, amendments to the Sex Discrimination Act 1984 (Cth) (“SD Act”) created a new legal obligation for employers to ensure the prevention of sexual harassment and sex discrimination in the workplace. This amendment introduced a positive duty on employers to ensure that their workplace is free from sexual harassment (“Positive Duty”). Further, the amendment also introduces new powers which allow the Australian Human Rights Commission (“AHRC”) to investigate matters and enforce compliance with the Positive Duty from 12 December 2023.
Whilst the Positive Duty came into effect in December 2022, there has been limited practical guidance on how the employers’ Positive Duty could be fulfilled until the AHRC published its ‘Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)’ (“Guidelines”) in August 2023.
The Guidelines set out practical steps and provide organisations and businesses with examples and guidance regarding the steps required to discharge their Positive Duty. Further, the Guidelines will be used by the AHRC to determine whether a business or organisation has complied with is Positive Duty after its enforcement functions commence on 12 December 2023.
This article summarises the Guidelines and explores what the Positive Duty entails, to whom it applies and how it can be fulfilled.
What is the Positive Duty?
The Positive Duty introduces a higher threshold which requires businesses and organisations to take reasonable and proportionate measures to eliminate, so far as possible, the following behaviour:
- sexual harassment;
- sex discrimination;
- sex-based harassment;
- conduct which creates a hostile workplace environment on the ground of sex; and
- related acts of victimisation which occur in connection with work,
together these behaviours are referred to as (“Unlawful Conduct”). The Positive Duty does not only apply to Unlawful Conduct which occurs in the workplace or during working hours. Rather, it also extends to conduct which occurs at work-related events and/or outside of the physical workplace. For example, the positive duty may extend to conduct which occurs at a client’s office or conduct which occurs when an employee is working from home, or even between interactions between two colleagues on the weekend. As such, businesses and organisations should be aware of the broad scope of the Positive Duty and should take adequate steps to ensure that they take all reasonable and proportionate steps to discharge their Positive Duty.
When deciding whether steps taken by an organisation are considered to be ‘reasonable and proportionate steps’, will depend on:
- The size, nature and circumstances of the organisation;
- The organisation’s resources;
- The practicability and cost of implementing preventative measures; and
- Any other relevant matters.
To whom does the Positive Duty apply?
The Positive Duty applies to all organisations and businesses in Australia that have obligations under the SD Act. The Positive Duty applies to sole traders, self-employed individuals, small, medium and large businesses and the government.
How can organisations fulfil the Positive Duty?
The Guidelines reveal four guiding principles (“Guiding Principles”) that set the tone to ensure compliance and seven Standards which explain the requirements associated with the Positive Duty and provide employers with practical way to satisfy their duty (“Standards”).
The Guiding Principles
The four Guiding Principles are as follows:
- Consultation: Maintaining consistent and genuine conversations with employees to better understand their needs and ensure marginalised or underrepresented groups feel heard.
- Gender Equality: Ensuring all genders have equal rights, rewards, opportunities and resources with a focus on the equal outcomes instead of equal treatment.
- Intersectionality: Recognising that Unlawful Conduct may impact people differently and addressing the unique risk factors of each employee.
- Person-centred & trauma-informed: Creating systems that meet individual needs and encouraging a better understanding of trauma and its effects.
The Standards set out in the Guidelines, are explained below.
The Leadership Standard addresses the role of individuals responsible for the management and governance of an organisation or business (“Senior Leaders”). Senior Leaders are expected to know their responsibilities under the SD Act and visibly display commitment to the Positive Duty, remain informed with up-to-date knowledge of Unlawful Conduct and ensure appropriate measures are developed, recorded in writing, communicated amongst the workplace and implemented and regularly reviewed.
Some examples of actions Senior Leaders can take to ensure they fulfill their responsibilities include:
- Subscribing to relevant updates, participating or facilitating education sessions and reading the Guidelines;
- Creating or approving a ‘prevention and response plan’ and regularly reviewing and updating it to align with new information;
- Creating opportunities for employees and other workers to provide feedback about the Senior Leader’s performance regarding their duty to create a safe and respectful workplace. This can include anonymous feedback through surveys, exit surveys or feedback boxes;
- Acknowledging good behaviour incentivising positive behaviour through remuneration or other incentives; and/or
- Expressing the organisations commitment to eliminating Unlawful Conduct and seeking feedback from employees.
Organisations are expected to foster a safe, respectful and inclusive culture that values diversity and gender equality, empowers employees to report Unlawful Conduct and holds staff members accountable. This can be done by:
- Paying attention to gender balance and diversity in recruitment and attempting to increase diverse representation;
- Developing gender equality strategies and diversity and inclusion strategies;
- Role modelling respectful behaviour with staff members, clients and customers and clearly communicating expectations about respectful behaviour to other staff members;
- Implementing tools and creating examples to remind employees what behaviour is acceptable and what behaviour is not; and/or
- Consistently discouraging, and addressing, disrespectful comments made in the workplace.
Organisations are expected to develop, communicate and implement policies which explain what respectful behaviour and Unlawful Conduct entail, educate employees on how to identify Unlawful Conduct and inform them of their rights and responsibilities. This can be done by:
- Providing regular and accessible training and education sessions on relevant Unlawful Conduct, its drivers, risk factors, impacts and reporting options;
- Creating policy documents that are regularly reviewed and consistently followed; and/or
- Making relevant information comprehensible and accessible by consolidating it into posters or flyers visible in common areas.
- Risk Management
Unlawful Conduct can pose significant risks to the psychological, and physical, wellbeing of employees, and other participants in the workplace. Further, Unlawful Conduct can violate a person’s right to equality and can result in discrimination. Organisations should ensure that Unlawful Conduct and other risks are managed by implementing targeted measures which are aimed at eliminating, reducing and/or controlling the Unlawful Conduct and other risks. This can be done by:
- Including tasks related to the Positive Duty in appropriate job descriptions;
- Implementing additional measures to support employees who may be at a greater risk of experiencing Unlawful Conduct;
- Engaging in consultation with workers, and any relevant representatives, regarding specific risks in the workplace including but not limited to when and in what situations workers are most at risk;
- Revising work methods and procedures to minimise the risk of Unlawful Conduct occurring; and/or
- Implementing control measures such as installing security cameras.
Unlawful Conduct can have short-term and long-term effects on workers. As such, organisations are expected to support employees who experience or witness Unlawful Conduct and ensure employees are made aware of the support made available by the business or organisation. This can be done by:
- Ensuring support is available to workers, both internally (such as a manager, health and safety representative or Human Resources team member) and externally (through an Employee Assistance Program, a General practitioner, psychologist or other medical practitioner);
- Ensuring that support systems can be accessed by workers in an anonymous manner and without disclosure to the business or organisation;
- Providing information about available support during the recruitment process; and/or
- Displaying flyers or posters in common spaces that outline the available support.
- Reporting and Response
Organisations are expected to have options for reporting and responding to Unlawful Conduct and should ensure employees are informed of these options. Further, it is necessary for organisations and businesses to ensure that all reports received by any member of the organisation or business are taken seriously, are dealt with in a timely manner and are treated with the upmost sensibility for the worker making the complaint. This can be done by:
- Creating resources (e.g., information sheets, poster and flyers) that contain the details of the business or organisations’ reporting avenues and ensuring these resources are easily accessible;
- Ensuring the business or organisation has both informal and formal reporting avenues and that anonymous reporting is permissible;
- Ensuring that workers who experience Unlawful Conduct are provided with the option to make a formal complaint;
- Crafting organisation wide responses to Unlawful Conduct and providing details about these responses in policy documents; and/or
- Ensuring the reporting and response processes are tailored towards, and specific to, the business or organisation and its workers.
- Monitoring, evaluation and transparency
Organisations are expected to collect, analyse and report on data relating to relevant Unlawful Conduct in the workplace. Data should be collected in relation to aspects of the organisation or business including, but not limited to, the leadership teams, the workplace culture and processes in place in relation to reporting and responding to Unlawful Conduct. This can be done by:
- Regularly conducting employee satisfaction surveys;
- Sharing data with employees who are responsible for developing prevention and response plans; and/or
- Publicly reporting findings and addressing the effectiveness of prevention measures when appropriate.
Overall, the Guidelines acknowledge that the Standards are interrelated, and, in some instances, actions implemented to comply with one Standard may also assist the organisation or business comply with another. Thus, employers are expected to devise a plan that enforces these Standards in ways that best suits their workplace.
Although the Guidelines do not have legislative force, they will be used by the AHRC, other enforcement bodies such as the Fair Work Commission, work Safe Australia and the relevant State work health and safety authorities, and the Courts, in determining whether the employer has met their Positive Duty. It goes without saying that if an organisation or business fails to follow or comply with the Guidelines, it will be unlikely in the extreme that it will be able to show it has met its Positive Duty under the SD Act and is therefore more than likely to be found to have breached its obligations and be subject to penalty and compensation orders.
You can see a full copy of the Guidelines by following this link.
“These changes to the law require a systemic shift from responding to harm after it happens, to preventing it before it occurs”– The Guidelines
How We Can Assist
We know that the process of ensuring that your business is compliant with its Positive Duty can be a difficult process. As such, this is a reminder that we can provide you with assistance in relation to:
- Creating robust frameworks, policies, procedures, response plans and employment agreements which comply with the Guidelines;
- Providing training to the organisation in relation to Unlawful Conduct and the business’ processes, procedures and response frameworks;
- Assisting with complaints, in the event a complaint is made by a staff member;
- Assisting with consultation processes; and
- Assisting with any other processes related to ensuring a business or organisation is compliant with their Positive Duty.
If you require further assistance or information in relation to this client alert, please do not hesitate to contact us.
This alert is not intended to constitute, and should not be treated as, legal advice.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please also note that the law may have changed since the date of this article.