Positive Duty to Prevent Sexual Harassment: What it means for employers
By Joanna Minchinton, Workplace Services General Manager and Madaleine Ziegler, Workplace Relations Advisor
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) ('the Act’) came into effect on 12 December 2022, and amended both the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission Act 1986 (Cth).
The Act made several changes:
- Introducing a positive duty on employers to take reasonable and proportionate measures to eliminate:
Workplace sex discrimination, sexual and sex-based harassment;
Hostile work environments on the grounds of sex; and
Certain acts of victimisation, as far as possible.*
Allowing the Australian Human Rights Commission (AHRC) to monitor and assess compliance with the positive duty.
*Collectively this is referred to as unlawful conduct.
Why is this Important?
From 12 December 2023, the AHRC’s new regulatory powers, which pertain to investigation and enforcement, will commence. These powers will enable the AHRC to investigate employers who are reasonably suspected of non-compliance with the positive duty requirements referred to earlier.
If, as a result of their investigation, the AHRC determines an employer is not complying with their positive duty obligations, a written notice may be issued. Another power of the AHRC will include applying to the federal courts for an order which directs compliance with the written notice.
NOTE: Where the AHRC has entered into an enforceable undertaking with an employer, they are prevented from issuing a written notice, unless the undertaking is withdrawn, cancelled or expired.
Last month, the AHRC published its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (‘the Guidelines’). These constitute the AHRC’s extensive legal guidance on the duty – that is, the steps businesses must take to prevent sexual harassment and related conduct.
The Guidelines are significant at 112 pages long and establish a framework for positive duty compliance, using seven standards, illustrated by four guiding principles, as well as practical examples.
The AHRC has indicated it will use the Guidelines to assess an employer’s compliance with the new positive duty obligations. As this is a lot of information to read and get across as an employer, a summary is provided for the benefit of readers below.
Before reading the summary, it is important to be aware that the new obligations of an employer a significant, and with less than three months until they take affect, employers need to take pro-active steps to be meeting their obligations now. \
Summary of the Guidelines
There are seven standards the AHRC expects employers to be doing in order to satisfy their positive duty under the Sex Discrimination Act 1984 (Cth). They provide an ‘end-to-end’ framework for prevention and response, which employers can adapt as necessary to fit their business context.
The standards cover the following areas:
- Risk management
- Reporting and response
- Monitoring, evaluation, and transparency
Below is a summary only of those seven standards. For more detail, employers are encouraged to contact the Workplace Advisory Services team to discuss their specific workplace needs.
Senior leaders must:
- Understand the positive duty on them, specifically unlawful conduct;
- Ensure appropriate measures are developed, updated, reviewed, and communicated to employees; and
- Be visible in their commitment to a workplace that values diversity and gender equality, by setting clear expectations and modelling correct behaviour.
Employers should create a safe, respectful, and inclusive culture that empowers all workers to report unlawful conduct, and to take action that minimises harm, and promotes accountability.
Employers are required to formulate and implement a policy in relation to respectful behaviour. Also, they should educate and train their employees on:
- The expected standards of behaviour;
- Identifying unlawful conduct and applicable consequences; and
- Their rights and responsibilities in the workplace.
4. Risk Management
Employers should undertake consultation processes with all stakeholders about sexual harassment risks and hazards. Further, it is integral employers adopt a risk-based approach to prevention and response.
Employers must inform employees about the available support, and ensure it is accessible to those who experience or witness unlawful conduct at work (regardless of whether it was reported).
6. Reporting and Response
- Provide their employees with appropriate options for reporting unlawful conduct, and communicate these options regularly;
- Respond to any reports in a timely and consistent manner, that minimises harm to victims; and
- Ensure the consequences are proportionate to the conduct.
7. Monitoring, Evaluation, and Transparency
It is expected employers act transparently when:
- Collecting relevant data to understand the extent and nature of unlawful conduct in their workplace; and
- Using the collected data to regularly assess and improve the work culture.
Employers Guiding Principles
The AHRC expects employers to follow four guiding principles that underpin the implementation of the seven standards.
The principles are designed to help inform employer decisions about suitable measures for their own circumstances, and are:
- Gender equality
- Person-centred and trauma informed
Principle 1: Consultation
Employers must effectively consult with their employees.
They can do this by:
- Asking for their opinion on what they:
Need for the workplace to be (and feel) respectful and safe; and
Identify as the risks and mitigation options to eliminate unlawful conduct.
- Amplifying the voices of those who are from marginalised and underrepresented groups.
Principle 2: Gender Equality
Employers should ensure all actions they undertake advance gender equality. This involves affording employees with equal rights, opportunities, rewards, and resources regardless of their sex.
Principle 3: Intersectionality
Employers must identify and address the unique risk factors and intersecting disadvantages of employees by understanding:
- How inequality can compound an individual’s experience;
- That unsafe and disrespectful workplace behaviour can have a heightened impact on certain people; and
- That occurrences of discrimination, harassment and victimisation are increased via overlapping structural inequalities.
Principle 4: Person-Centred and Trauma Informed
Employers need to ensure workplace systems, policies, and practices affirm the safety and dignity of their employees.
This can be achieved by:
- Comprehending and meeting individual’s needs;
- Incorporating an understanding of trauma and its effects; and
- Prioritising wellbeing, choice and empowerment.
What does this mean for employers?
All businesses, regardless of their size or structure, carry risks for sexual harassment. Consequently, employers should not wait for something to occur before reviewing their practices and culture. With the AHRC's expanded powers and functions coming into force later this year, employers must take proactive steps to meet their positive duty requirements under the Sex Discrimination Act 1984 (Cth).
At a minimum, before 12 December 2023, employers should seek to:
- Identify and address any systemic failures that place them at risk of noncompliance;
- Update their policies, procedures, training and WHS practices;
- Educate employees, particularly senior managers about the positive duty; and
- Introduce new or review existing reporting mechanisms for instances of unlawful conduct.
Business Chamber Queensland can assist employers in two important ways.
Sexual Harassment Policy
Our template policy can be adopted and adapted for the workplace. This policy template contains:
- Definition of sexual harassment
- Conduct amounting to sexual harassment
- Prohibition of sexual harassment
- Hostile workplace environment
- Details of IR Reforms changes to sexual harassment
- Complaints Process
- Disciplinary Action
Business Evolve / HR Assist members – NO COST. Email [email protected] for a copy.
Other members: $140.00 (ex GST)
Non members: $250.00 (ex GST)
Our template, as tailored by you, is a great first step to assist employers in meeting their your obligations to provide a safe workplace that is free from sexual harassment.
In House Training
The Workplace Advisory Services team will come to your workplace and provide staff and management with important information about sexual harassment and the other matters employers have a positive obligation to address in their workplace.
Information about our in house training can be viewed HERE.