In anticipation of the positive duty legislation, Akyra has been working with our clients since late 2022 to implement strategies that mitigate against their workforce not understanding what inappropriate behaviour in the workplace is and isn’t.
The reason being that, effective 13 December 2023, the Australian Human Rights Commission (AHRC) will have the power to investigate and enforce compliance with the new positive duty on employers and ‘persons conducting a business or undertaking’ to eliminate unlawful sex-based conduct including sexual harassment and sex discrimination in the workplace.
What is this new 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:
- Risk management,
- Reporting and response, and
- 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.
Investigation and Enforcement Powers
The 12-month grace period for organisations to prepare and implement measures to comply with the positive duty will soon come to an end. Effective 13 December 2023, the AHRC have the power to:
- Conduct inquiries into compliance with the positive duty;
- Compel the production of documents and to examine witnesses;
- Issue a compliance notice specifying the actions an organisation must take, or refrain from taking, to address any non-compliance;
- Apply to the federal courts for an order to direct an organisation to comply with a compliance notice; and
- Enter into enforceable undertakings with an organisation under which it agrees to do, or refrain from doing, certain actions.
The organisation will have an opportunity to make submissions to the AHRC in relation to their suspected failure to comply with the positive duty. A review of a decision to issue a compliance notice can also be requested.
Breach of the positive duty does not attract a civil penalty; however the federal courts have broad powers to make any appropriate orders if satisfied an organisation is not complying with a compliance notice issued by the AHRC. Organisations should also be mindful of reputational risks of having compliance action taken against them, and the potential impact on retention and recruitment.
It is not clear how vigorously the AHRC will enforce compliance with the positive duty, and this may not be known until we have an example of an enforcement action under these new powers.
The newly appointed Sex Discrimination Commissioner, Anna Cody, has announced that particular industries (e.g. mining, retail and legal industries) will be subject to increased scrutiny.
Regardless of the industry your business or organisation operates in, a clear and comprehensive plan for addressing the positive duty to eliminate prohibited behaviours ought to be in place prior to 12 December 2023.
Please contact Akyra to discuss how you might implement a strategy that reflects your organisational size and that also meets the requirements of the Positive Duty legislation – firstname.lastname@example.org or 07 3204 8830.
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.