Published guidance on how employers can comply with positive duty to stop sexual harassment
Posted on September 07, 2023
In August 2023, the Australian Human Rights Council (AHRC) published its guidelines for complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (Guidelines). The foreword provides that “Australia must begin actively preventing workplace sexual harassment and sex discrimination, rather than responding only after it happens.”
These Guidelines are intended to help employers and persons conducting a business or undertaking (PCBU) understand the positive duty, the Standards they are expected to meet and the actions that they can take to assist them in meeting their legal obligations.
Refresher on the positive duty
Please refer to our previous article for further details on the positive duty.
On 28 November 2022 the Anti-Discrimination and Humans Rights Legislation (Respect @ Work) Bill passed parliament. A key amendment of this legislation was the introduction of a positive duty on employers and PCBU's to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:
- workplace sexual harassment;
- sex-based harassment;
- sex discrimination;
- hostile work environments;
- and victimization
(collectively referred to as the unlawful conduct).
The positive duty requires employers and PCBU’s to take a proactive rather than reactive approach to unlawful conduct. The positive duty operates concurrently with existing duties in Work Health and Safety laws, which require employers and PCBUs to provide a safe working environment.
Importantly, employers and principals can be held liable for unlawful conduct committed by their employees and agents in connection with their employment or duties as an agent i.e., the principle of ‘vicarious liability’.
Regulatory powers have been conferred on the Australian Human Rights Commission (Commission) to investigate and enforce compliance with the positive duty. These powers commence in December 2023 and the Commission will use the Guidelines to assess compliance.
There are seven Standards under the Guidelines which outline what the Commission expects employers and PCBU’s to do to satisfy the positive duty, including practical actions in relation to each Standard.
The seven Standards are:
- Risk Management
- Reporting and response
- Monitoring, evaluation and transparency
The key takeaways under the Standards are that:
- senior leaders should understand the positive duty and know what conduct is unlawful;
- employers should create a safe, respectful and inclusive cultures;
- employers should have a policy in relation to respectful behaviours and educate their workers on expected behaviour standards;
- employers and PCBU’s should consult with all stakeholders about sexual harassment risks and hazards;
- workers who experience or witness unlawful conduct should be provided with support;
- workers should be provided be appropriate options for reporting unlawful conduct; and
- employers and PCBU’s should collect relevant data in relation to unlawful conduct to be used to continually improve on.
The Guiding Principles
The Guiding Principles in the Guidelines are intended to help inform the decisions an employer or PCBU makes and should be considered and applied when implementing the seven Standards.
The Guiding Principles are:
- Consultation – talking to workers about what they need for a workplace to be (and feel) safe and respectful.
- Gender equality – actions taken to implement the positive duty should contribute to achieving gender equality.
- Intersectionality – refers to the way that different aspects of a person’s identify intersect with and impact one another. An intersectional approach recognises that unsafe and disrespectful workplace behaviour may have a heightened impact on different people.
- Person- centered & trauma- informed - complementary ways to address relevant unlawful conduct and to meet people’s needs in the workplace.
Please contact our workplace relations team if you require assistance in relation to complying with the positive duty.