Sexual harassment and the positive duty to prevent
A recent investigation into sexual harassment in the workplace and positive duty compliance by employers highlights that many businesses may need to be more proactive in creating an environment that is more likely to actively discourage sexual harassment in the workplace.
So what exactly does positive duty mean for employers? And what steps can businesses take to more proactively prevent sexual harassment in the workplace?
Sexual harassment in the workplace
Over the past several years, a number of high profile cases and stories have highlighted the widespread and systemic problems of sexual harassment in the workplace.
Sexual harassment is something which is concerningly common in the Australian workplace. A 2018 report by the Australian Human Rights Commission found that, over a five-year period, 39 percent of women and 26 percent of men had experienced sexual harassment in the workplace.
Indigenous women, women living with disabilities, and those of diverse sexual orientations were found to be particularly at risk of sexual harassment.
What is a positive duty?
In Victoria, employers have a legal responsibility under the Equal Opportunity Act 2010 to take action to prevent workplace sexual harassment, not just respond to it”.
This ‘positive duty’ to prevent sexual harassment means businesses must be able to demonstrate they have taken all available steps to prevent this type of behaviour in their workplace, rather than simply responding to sexual harassment when it occurs.
A recent investigation by the Victorian Human Rights Commission suggests some businesses are falling short when it comes to positive duty compliance.
A ‘preventative’ investigation into Bakers Delight identified a number of compliance gaps when it came to the business’ positive duty to prevent sexual harassment.
An in-depth investigation of the company found that Bakers Delight had no sexual harassment prevention plan in place, that sexual harassment prevention had not been integrated into the company’s overall health and safety framework, and that the company had no central register in place to record sexual harassment complaints.
Additionally, the company had not provided preventative training to any employees or managers since 2018, nor did they have sufficiently robust policies in place.
After these significant shortcomings were identified by the Commission, an agreement was reached where Bakers Delight has committed to a range of improvements to mitigate the chances of sexual harassment occurring.
Concerningly, the Commission believes this case is far from being a one-off.
Why should employers be aware of this?
As the Bakers Delight case highlights, it is very important for businesses and employers to ensure they are proactively working to mitigate sexual harassment in the workplace.
And while Victoria is currently the only state or territory in Australia to have legislated a positive duty to mitigate against sexual harassment, the Federal Government has indicated they have plans to implement similar legislations on a national level.
This means that all Australian businesses should carefully review their existing policies and procedures concerning sexual harassment in order to ensure they have the right systems in place to actively mitigate against sexual harassment – rather than just respond to it.
Akyra’s key takeaways
- It has become increasingly important for businesses to proactively address the systemic problem of sexual harassment in the workplace
- In the state of Victoria, employers have a positive duty to prevent sexual harassment in the workplace – and similar legislation may soon be implemented at a national level
- Employers should review their workplace policies and procedures concerning sexual harassment in order to ensure they are able to effectively help to prevent sexual harassment
NEED MORE INFORMATION?
Akyra can help your business to assist and support all your questions and concerns related to employee benefits. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
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.
Sources:
https://www.hrdaily.com.au/news/10608, https://www.humanrights.vic.gov.au/static/0e635cd9874d974bcae48ecfecab4215/Resource-Investigations-Preventing_Sexual_Harrassment_in_Retail_Franchises.pdf, https://www.unsw.adfa.edu.au/newsroom/news/explainer-what-positive-duty-prevent-workplace-sexual-harassment-and-why-it-so-important2#:~:text=So%2C%20what%20is%20a%20positive,in%20order%20to%20promote%20equality.
