December 13 is D-Day for Positive Duty

The positive duty came into operation under the federal Sex Discrimination Act 1984 (Cth) in December 2022 and requires employers to take all reasonable steps to eliminate, so far as is reasonably practicable, the following behaviours from the workplace which are collectively referred to as prohibited behaviours:

• Sexual harassment;
• Harassment on the ground of sex;
• Discrimination on the ground of sex;
• Creating a hostile work environment on the ground of sex; and
• Related acts of victimisation.

There has been a grace-period of 12 months to allow organisations time to prepare and implement measures to comply with the positive duty this period is now coming to an end.

Legislating a positive duty to eliminate prohibited behaviours was one of the key recommendations of the AHRC’s Respect@Work report. The report was commissioned by the Federal Government to explore ways to reduce sexual harassment in the workplace. This followed the publication of surveys conducted by the AHRC which revealed that as many as one in three women reported experiencing sexual harassment in the workplace in the previous five years.

A key finding from the Respect@Work report was that employers were reactive, rather than proactive, when it came to sexual harassment and related behaviours. It was observed employers placed inordinate focus on having a grievance procedure and taking disciplinary action where allegations were proven, without considering measures to prevent such conduct occurring in the first place.

The new positive duty seeks to address this by requiring employers to take preventative action – e.g. through implementing policies that also protect workers from exposure to the prohibited behaviours by visitors to their workplace; conducting regular training and conducting periodic risk assessments. The Sex Discrimination Act requires that employers take these steps as a starting point to eliminate, as far as is practicable, prohibited behaviours in the workplace.

The AHRC has recently published guidance material to assist organisations to comply with the positive duty (Resources on Positive Duty). These guidelines are intended to help organisations understand the positive duty and outline possible actions which can be taken to satisfy their legal obligation.

The guidelines are centred around seven standards:

1. Leadership,
2. Culture,
3. Knowledge,
4. Risk management,
5. Support,
6. Reporting and response, and
7. Monitoring, evaluation and transparency.

Based on these seven standards, a multi-faceted approach to eliminating prohibited behaviours in the workplace is required, however there is no “one size fits all” approach.

Each organisation must consider what measures it can practicably implement, having regard to the size and nature of its business and the resources available. A large organisation with significant resources will likely be expected to take more steps than a small business.

An example which the AHRC uses in the guidance material is that a small business might have informal feedback discussions with staff about prohibited behaviours, where a larger organisation might have a formal engagement survey.

Certain cost-effective measures (e.g. ensuring your senior employees are leading by example and developing policies which identify and condemn prohibited behaviours to set behavioural expectations and workplace culture) can be implemented by organisations of any size.