In late 2022, the Federal Government introduced the positive duty which requires employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination and sexual harassment in their place of work was introduced into the Sex Discrimination Act 1984 (Cth) (SDA).
The Australian Human Rights Commission (AHRC) now has increased powers to inquire into, and enforce compliance with the positive duty. These powers come into effect on 12 December 2023.
Implications For Employers
Prior 12 December 2023, it is suggested employers review conduct a risk assessment and ensure their policies and procedures support robust systems place to comply with their new positive duty obligations.
Positive duty obligations mean employers will need to have processes that go beyond being reactive to an employee’s complaint. Where a state government already has a positive obligation (e.g., Victoria), now would be an appropriate time to refresh relevant systems and processes to ensure proactive preventative measures are being implemented.
On 9 August 2023, the AHRC released guidance for employers and ‘persons conducting a business or undertaking’ on how to comply with the new positive duty under the SDA (Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (humanrights.gov.au).
The guidelines set out seven standards organisations and businesses are expected to undertake so they satisfy their new positive duty obligations under the SDA.
- Ensure workers in management and governance positions (Senior Leaders) are aware of their positive duty and obligations under the SDA. Senior Leaders are expected to establish standards, exemplify respectful and inclusive behaviour, and actively exhibit their dedication to creating a safe, respectful, and diverse workplace that promotes gender equality.
- Strive to create a workplace culture that is safe, respectful, inclusive and values diversity and gender equality.
- Create and enforce policies addressing respectful behaviour and unlawful conduct. Educate employee at all levels to promote a safe, respectful, and inclusive work environment including setting behaviour standards, information employees of their rights and responsibilities and their role in preventing and addressing unlawful conduct.
- Recognise certain unlawful conduct poses risks to psychological and physical health and safety of workers; and violates employee rights to equality, non-discrimination, and human dignity.
- Ensure appropriate support mechanisms are in place for workers who experience or witness unlawful conduct.
Reporting & Response
- Ensure appropriate processes for reporting and responding to reports of unlawful conduct and that these are regularly communicated to workers. Ensure responses to reports of unlawful conduct are consistent, timely and prevent harm and victimisation.
Monitoring, Evaluation & Transparency
- Collect data to understand the nature and extent of workplace unlawful conduct and use it to assess and improve workplace culture and develop prevention strategies.
The Guiding Principles
The guidelines set out four guiding principles to assist businesses make informed decisions about what they need to do to comply with the positive duty. These are identified below.
- Consulting with employees to create a safe and respectful workplace by addressing risks and developing/implementing mitigation strategies and ensuring voices of underrepresented groups are heard.
- Gender equality is both a cause and effect of sexual harassment so there is a need to strive for equal rights, rewards, opportunities, and resource assess for all genders.
- Intersectionality recognises people’s lives are shaped by their identifies, relationships and social factors. An intersectional approach to addressing sexual harassment allows businesses to identify and address unique risk factors along with intersecting disadvantages of various groups.
Person-Centred and Trauma Informed.
- Person-centred approaches to addressing sexual harassment requires businesses to recognise and meet individual needs, placing the needs, values, and preferences of the individual at the forefront.
- Trauma-informed approaches to addressing sexual harassment requires understanding of how trauma impacts people to prevent further harm; prioritising safety, choice and empowerment whilst recognising the impact of trauma to prevent further harm.
- Conduct a risk assessment to ensure your policies and procedures will adequately support the positive duty obligations.
- Ensure employees at all levels of seniority are provided with tailored training on bullying and sexual harassment.
- Ensure people in leadership positions are equipped with the tools needed to understand the impact of bullying and sexual harassment so they can take visible action to address and eliminate any harm.
- Ensure all employees are informed about the wellbeing and support measures available to them and how they can access such measures.
- Ensure there is a people-centred, transparent, and trusted reporting process; and
- Strengthen workplace policies so they provide a framework for prevention, early intervention and reporting/responding to bullying and sexual harassment.
Source: Johnson Winter Slattery 13.09.2023
For any clarification on how you might manage the positive duty requirements in your business, contact Akyra for a tailored solution appropriate for your business.
Akyra’s Key Takeaways
- In late 2022, the Federal Government introduced a positive duty that requires employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination and sexual harassment in the workplace. This duty was added to the Sex Discrimination Act 1984 (Cth), and it places new obligations on employers to proactively address these issues.
- The AHRC now has increased powers to inquire into and enforce compliance with the positive duty. These powers will be effective from December 12, 2023. This means that the AHRC will play a more active role in ensuring that employers are taking the necessary steps to prevent sexual harassment and sex discrimination in their workplaces.
- The seven standards and four guiding principles that organisations and businesses are expected to follow to meet their new positive duty obligations under the Sex Discrimination Act. These standards and principles cover leadership, workplace culture, knowledge, risk management, support mechanisms, reporting and response processes, and monitoring and evaluation. The guiding principles emphasise consultation with employees, gender equality, intersectionality, and a person-centered and trauma-informed approach to addressing sexual harassment.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.