Are you aware of your obligations to comply with the ‘positive duty’ to eliminate sexual harassment?

In March 2020, the Australian Human Rights Commission released the Respect@Work: Sexual Harassment National Inquiry Report (Respect@work Report). The report made 55 recommendations directed at all levels of government and the private sector for policy and legislative reforms to prevent and address sexual harassment in the workplace. 

In late 2022, amendments were made to sex discrimination and human rights legislation in accordance with some of the recommendations from the Respect@Work report, of which was the new positive duty which will be imposed on employers and persons conducting a business or undertaking to ​“take all reasonable steps to prevent conduct” that constitutes: 

• discrimination on the ground of sex in a work context
• sexual harassment in connection with work
• sex-based harassment in connection with work
• conduct creating a workplace environment that is hostile on the ground of sex
• related acts of victimisation.

These changes to the law require a systemic shift from responding to harm after it happens, to preventing it before it occurs. Preventative approaches are not new to Australian workplaces or the regulation of people at work. These reforms align the approach in the Sex Discrimination Act 1984 (Cth) with other workplace protections, including those set out in work health and safety (WHS) laws.

Furthermore, new guidelines have been published by the Australian Human Rights Commission (AHRC) to help employers comply with the new ​’positive duty’ to eliminate sexual harassment and discrimination in the workplace.

The new guidance is based around seven standards which provide ​‘end-to-end’ framework that businesses can use to tailor their approach to preventing sexual harassment or discrimination in the workplace. These are:

• Leadership: Senior leaders understand their obligations under the Sex Discrimination Act 1984 (Cth) and have up-to-date knowledge about relevant unlawful conduct.
• Culture: Organisations and businesses foster a culture that is safe, respectful, and inclusive and that values diversity and gender equality.
• Knowledge: Organisations and businesses develop, communicate, and implement a policy regarding respectful behaviour and unlawful conduct.
• Risk management: Organisations and businesses recognise that relevant unlawful conduct is an equality risk and a health and safety risk.
• Support: Organisations and businesses ensure that appropriate support is available to workers (including leaders and managers) who experience or witness relevant unlawful conduct.
• Reporting and response: Organisations and businesses ensure that appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to workers and other impacted people.
• Monitoring, Evaluation and Transparency: Organisations and businesses collect appropriate data to understand the nature and extent of relevant unlawful conduct concerning their workforce.

Importantly, employers need to be aware that the Australian Human Rights Commission will have new powers to investigate and enforce compliance with the new positive duty on employers. These powers will commence in December 2023. Employers need to act now to set up the necessary measures to ensure their compliance with this new duty. 

The South Australian Business Chamber are here to help:

Under this new duty, the onus will be on the employer to take proactive steps to ensure their compliance with the positive duty. Proactive steps can range from putting employees and management through sexual harassment training, regularly updating and implementing workplace policies, conducting audits on workplace culture and so much more. The South Australian Business Chamber are experts in the field of industrial relations and work health and safety and have training courses and workplace consultants on hand to assist you with your compliance. 

Contact the South Australian Business Chamber today to discuss your strategy for preventing and addressing sexual harassment and discrimination in the workplace. Contact our Business Advice Hotline to hear about how we can help on 8300 0000 (select option 1).