In December 2022, through the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth), a new positive duty was placed on employers and other persons conducting a business or undertaking (‘PCBU’s’) to take reasonable and proportionate measures to eliminate sex related discrimination and harassment behaviours in the workplace.

The Federal Government’s Respect@Work website neatly summarises the new positive duty as follows:

“The new positive duty imposes a legal obligation on employers and PCBUs to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and victimisation from occurring in the workplace or in connection to work.”

Whilst this new duty has been in place since December 2022, from 12 December 2023, the Australian Human Rights Commission (‘AHRC’) will have the power to ensure that employers and other PCBU’s are complying with the positive duty.  Accordingly, it is vital that employers and other PCBU’s take steps to discharge this positive duty.

The AHRC will have the power to make ‘inquiries’ where it ‘reasonably suspects’ that an organisation or an employer is not complying with the positive duty. In terms of what might trigger a ‘reasonable suspicion’ in the AHRC, the trigger for these enquiries may be information provided by other regulators, information in the media, information from worker representatives or complaints from the impacted individuals themselves.

Where the AHRC determines that a relevant employer or PCBU has failed to comply with its positive duty, the AHRC will have the power to make recommendations to assist the employer or PCBU to become compliant, issue compliance notices or enter into enforceable undertakings with organisations.  The AHRC can also apply to the Federal Courts for a court order to ensure compliance with an issued compliance notice.

Guidance to ensure compliance

The AHRC has released a set of Guiding Principles and Standards to assist employers and other PCBU’s to demonstrate that they have taken reasonable steps to provide a safe workplace.

Guiding Principles:

The AHRC’s ‘Resource for Small Business on the Positive Duty under the Sex Discrimination Act 1984 (Cth)’ summarised the AHRC’s Guiding Principles as follows:

• “be consultative – talk to your workers about what they need for a safe and respectful workplace
• aim to achieve gender equality – where people of all genders have equal rights, rewards, opportunities and resources
• think about your people – do your workers have different intersecting identities that may affect their experience of discrimination and harassment? For example, is a particular individual a woman and/or gender diverse, young, from a racial minority, or do they have a disability?
• be person-centred and trauma informed – support individual choice, safety and dignity and avoid causing harm.”

 The Seven Standards:

The AHRC have also released seven ‘Standards’.  Employers and other PCBU’s can access detailed information about those Standards in the ‘Steps to meet the Positive Duty’ Factsheet which can be found here – https://humanrights.gov.au/our-work/sex-discrimination/projects/positive-duty-under-sex-discrimination-act.  However, a summary of the focus of each Standard is as follows:

1. Leadership: Senior leaders of an employer or other PCBU must have up-to-date knowledge about their obligations under the Sex Discrimination Act and relevant unlawful conduct. They are directly responsible for ensuring that appropriate measures for preventing and responding to instances of sexual harassment are developed, communicated to employees, implemented, and reviewed. Senior leaders should also role model respectful behaviour.
2. Culture: Employers and other PCBU’s should foster a culture of safety, respect, and inclusivity. This culture should empower workers and leaders to report unlawful conduct.
3. Knowledge: Employers and other PCBU’s should develop and implement policies and procedures regarding unlawful conduct and respectful behaviour. They should educate workers on these policies and ensure that workers understand the expected standards of behaviour, know how to identify inappropriate behaviours and explain the consequences of engaging in inappropriate behaviours. The workers also need to know their rights and responsibilities in participating in and contributing to a safe, respectful and inclusive workplace.
4. Risk management: Employers and other PCBU’s should take a risk-based proactive approach to preventing unlawful conduct, including proactively implementing and reviewing control measures where necessary.
5. Support: Employers and other PCBU’s should ensure appropriate support is available to workers who witness or experience unlawful conduct in connection to the workplace.
6. Reporting and response: Employers and other PCBU’s should ensure there are appropriate options for reporting and responding to instances of unlawful conduct. Responses to reports should be consistent, timely and aim to minimise harm for all parties involved. Any consequences or disciplinary measures taken should be consistent and proportionate.
7. Monitoring, evaluation, and transparency: Employers and other PBCU’s should collect data regarding unlawful conduct in their workplaces, and use that data to develop measures for preventing and responding to unlawful conduct.

Key Takeaways for Employers

The arrival of these new enforcement powers, which come into effect on 12 December 2023, serve as a reminder to employers and other PCBU’s to ensure that their behavioural policies (and particularly those relating to discrimination and harassment) are up to date, and that workers are trained on those policies.  It will not be enough just to have workers trained on these policies at the outset of their employment or engagement, or on commencement of a new policy.  It is vital that employers and other PCBU’s regularly undertake reviews of their policies and provide refresher training on those policies.

It will also be a sound risk mitigation measure to undertake risk assessments in relation to the risks of sexual harassment, sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and victimisation in the workplace.  These risks assessments can be undertaken in much the same way as other workplace health and safety risk assessments are undertaken, and with reasonable control measures being implemented where appropriate to do so.

It has never been so important to ensure that behavioural policies and associated training processes are current, robust and fit for the purpose of discharging this new positive duty.  It has also never been more important to have a robust review process to ensure that foreseeable risks are regularly reassessed, with subsequent control measures being implemented and reviewed.

Employer’s and other PCBU’s should also ensure that they are familiar with the AHRC’s Guiding Principles and Standards.

If you have any questions about how to manage, mitigate and eliminate risks in your workplace, please contact our specialist lawyers at Aitken Legal.