In December 2022, a new positive duty was introduced under the Sex Discrimination Act 1984 (Cth) (Act). Organisations and businesses now have a legal obligation to take proactive and meaningful action to prevent and eliminate, as far as possible, unlawful behaviour including:

  • Discrimination on the grounds of gender in a work context;
  • Sexual harassment in connection with work;
  • Gender-based harassment in connection with work;
  • Conduct creating a workplace environment that is hostile on the grounds of sex; and
  • Related acts of victimisation.

These changes require businesses and organisations to take proactive measures in reducing the risk of sexual harassment in the workplace and other unlawful behaviour, rather than just responding only after the incident occurs.

 

General Guidance and Standards

The Australian Human Rights Commission (AHRC) has released practical guidance to help businesses and organisations comply with the new positive duty. A summary of this guidance is provided below, but to read the full guidelines, please click here.

In their guidance, the AHRC provide a framework to help businesses determine the practical actions or changes required to satisfy their positive duty obligations.

This framework is categorised by seven ‘Standards’ based on research regarding the causes of relevant unlawful conduct and what is required to prevent it from happening. Each Standard is supported by ‘Guiding Principles’ which provide a comprehensive framework for prevention and response. Individual businesses can then tailor these Standards and Guiding Principles to suit their own workforces and assist with satisfying the positive duty.

The seven Standards are categorised as:

  1. Leadership;
  2. Culture;
  3. Knowledge;
  4. Risk Management;
  5. Support;
  6. Reporting and Response; and
  7. Monitoring, Evaluation and Transparency.

The AHRC expects all organisations and businesses to have measures in place to address each of the seven Standards. This will look different for every business.

In determining whether an organisation or business has satisfied its positive duty by taking ‘reasonable and proportionate measures’, the Act requires the AHRC and the courts to consider:

  • The size, nature and circumstances of the organisation or business;
  • The resources of the organisation or business;
  • The practicability and the cost of measures; and
  • Any other relevant matter.

The scope of this last consideration exemplifies the flexibility offered to the courts to make their assessment under the Act. The factors the Courts may consider include:

  • the culture of a workplace;
  • levels of worker supervision;
  • working hours;
  • geographical location, and
  • other relevant laws.

 

How Will This Affect Your Business?

Every business regardless of size or structure must comply with the positive duty under the Act to eliminate sexual harassment.

Some immediate actions you could take include:

  • Undertake a formal audit or risk assessment to understand possible areas of weakness or exposure points that increase the risk of sexual harassment.
  • Create action plans to confront these areas. This could include a review and update of policies or face-to-face training with employees.
  • Review your complaints/grievance process so you are prepared if any reports of sexual harassment arise.
  • Communicate with your employees to ensure they are aware of their avenues if they feel unsafe or want to speak up about sexual misconduct. Encouraging a safe space in the workplace to talk about these incidences is vital to ensure they do not escalate.

This new positive duty places an obligation on businesses and organisations to take responsibility for creating an inclusive culture that is free from discrimination and harassment. It also acts as a timely reminder to review and reflect on your own workplace culture generally. If you would like us to assist you in taking the next steps in developing your positive workplace culture, please do not hesitate to contact Daniel Morgan (0412425508, daniel@morganenglish.com.au) and the M+E Workplace & Conduct team for personalised legal advice today.

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