Employers and ‘persons conducting a business or undertaking’ are already subject to a positive duty to prevent sexual harassment and related unlawful conduct in the workplace. From 12 December 2023, the Australian Human Rights Commission (AHRC) will exercise new powers to investigate and enforce compliance with the positive duty. This article provides guidance about what the duty entails, details about the AHRC’s new powers and steps employers should take now to comply with their obligations.
According to recent statistics published by the AHRC, a third of working Australians have reported experiencing sexual harassment in the workplace. The actual (unreported) figure may be significantly higher. Sexual harassment at work is a serious problem which can have far-reaching detrimental consequences not only upon the victim but also upon staff morale and business reputation. This in turn can negatively impact staff retention, productivity and commercial outcomes.
The Positive Duty
The positive duty focuses on an employer’s obligation to take reasonable and proportionate measures to proactively prevent sexual harassment and associated unlawful conduct such as inequality, discrimination and hostile work environments (unlawful conduct). The duty is far-reaching with the obligations protecting not only employees, but also self-employed contractors and, in some cases, clients, visitors to a workplace and even members of the public.
New Powers of the Australian Human Rights Commission
The AHRC’s new powers, which are inherently broad, come into effect on 12 December 2023. Under the new provisions, the AHRC can commence an inquiry if it ‘reasonably suspects’ that an entity is not complying with the positive duty. Given the breadth of the positive duty, this is a near-limitless power to commence investigations and hold businesses to account. Complaints and suspicions can be reported to the AHRC by interested parties including government regulators, aggrieved individuals, unions or the media.
If the AHRC is satisfied that an entity is failing to comply with the positive duty, it will have the power to:
- conduct thorough inquiries into compliance;
- issue compliance notices which stipulate action that must be taken or prohibited;
- apply to the Federal Courts to order compliance with the above; and
- enter into enforceable undertakings with the business or entity in question.
Complying with the Duty
There is no one-size-fits-all approach to compliance as no two businesses or employers are identical. The size, associated costs, personnel, industry and set-up of an employer will influence the type of measures that should be implemented. The AHRC has encouraged employers to be creative with their solutions.
The AHRC has released extensive guidelines (running to more than a hundred pages) as well as an abridged version, for complying with the positive duty. The guidelines are worthwhile reading for all employers, providing detailed examples of unlawful conduct and suggested steps an employer can take to discharge their positive duty.
As part of its guidance, the AHRC has provided four guiding principles which are briefly defined below.
The Guiding Principles
Consultation: The AHRC encourages employers to consult and work with their employees to understand what a safe and respectful workplace looks like to them.
Gender Equality: The AHRC encourages employers to ensure that its actions contribute towards achieving gender equality in the workplace.
Intersectionality: The AHRC encourages employers to be cognisant of the various different aspects of an employee’s life that ‘intersect’ with those of their co-workers and which will impact an employee’s perception of unlawful conduct and their reaction to it.
Person-Centred and Trauma-Informed: The AHRC encourages employers to implement approaches that understand and reflect the needs of victims of unlawful conduct.
The AHRC has also released 7 minimum standards to assist employers in fulfilling the positive duty, these are:
Leadership: Implementing a positive duty is a trickle-down approach. Senior leaders must understand the duty and lead by example.
Culture: Organisations must instill a culture that is safe, respectful, inclusive and advances gender equality. Employees should feel empowered to hold their peers accountable.
Knowledge: Organisations must develop and implement a suitable policy that addresses the unlawful conduct and seeks to prevent it. The policy should be conveyed to staff with appropriate training where necessary. The policy should be regularly reviewed to ensure it is suitable and appropriate.
Risk Management: Organisations must view sexual harassment as a health and safety risk and implement a policy with this in mind.
Support: Organisations must ensure that suitable support systems are available to employees and that employees know about the existence of such support systems and how to access them.
Reporting and Response: Organisations must ensure that there are appropriate mechanisms in place for the reporting of suspected unlawful conduct. Complaints must be responded to and investigated swiftly with proportionate consequences.
Monitoring, evaluation and transparency: Organisations must continually review, improve and adapt their policies as necessary. Processes should be as transparent as possible.
Takeaways and Checklist
Businesses should take immediate steps to ensure compliance with the positive duty, including by:
- Undertaking a comprehensive and honest review of the current policies and procedures relating to sexual harassment and sex discrimination. Are they adequate?
- Educating all employees about the positive duty, what harassment in the workplace looks like and what steps an employee can take to report possible breaches;
- Consulting with employees about what a safe workplace is in their eyes and implement any suggested improvements where appropriate;
- Ensuring management and ‘leaders’ understand the positive duty and lead by example;
- Keeping detailed records, from the outset, of the measures taken to prevent unlawful conduct;
- Swiftly investigating reported incidents of unlawful conduct and taking appropriate action while keeping the victim informed and involved in the process;
- Regularly reviewing policies and procedures for appropriateness and efficacy; and
- Seeking legal advice to ensure comprehensive understanding of the positive duty and tailored guidance on discharging the duty.
It is no longer enough for employers to take a reactive approach to sexual harassment in the workplace. Simply having a policy and running training on induction is unlikely to be enough. Measures must be taken to prevent it occurring in the first instance and the AHRC appears determined to hold businesses to account. Be informed, proactive and ready today!
Pragma Lawyers is conducting audits of clients’ compliance with the new, more onerous obligations. We are also assisting clients to implement their recommended improvements (for example by delivering tailored training to all staff).
If you require assistance in relation to any of the information provided above, Pragma’s Employment lawyers can provide advice to you and your business to minimise your future risk. Contact Pragma Lawyers today at hello@pragma.law or call us on (08) 6188 3340.
