Sexual Harassment and 'Positive Duty'

What are the new positive duty obligations for employers?

In response to the continual rise of sexual harassment as a 'hot topic' issue in Australian workplaces, and as part of the ongoing response to the Sex Discrimination Commissioners Respect@Work Report, the Federal Government changed the law in late 2022. New avenues for employees to pursue claims and the Human Rights Commissions powers to actually enforce the new ‘positive duty’ on employers came into effect on 12 December 2023.

The laws have imposed a new 'positive duty' on all employers. No matter what size your business, every business owner must take reasonable steps to eliminate sexual harassment and other unlawful behaviour from occurring in the workplace. Responding to complaints when they arise is no longer enough. 

There is no exemption under this law  - not even for small business.  If reasonable steps are not taken to eliminate sexual harassment and related unlawful behaviour in the workplace, the employer could be held liable and face considerable financial and reputational damage to the business.

Workplace sexual harassment is bad for business

Whilst most employers would like to think that sexual harassment is not something that happens in their workplace, one in every three Australian workers report having experienced sexual harassment whilst at work, according to "Time for Respect: Fifth National Survey on Sexual Harassment in Australian Workplace", Australian Human Rights Commission, November 2022.

The new legislation makes it abundantly clear that all employers, in all sectors, no matter the size, need to be taking certain precautionary steps to eliminate this unlawful behaviour before it occurs, or risk being held legally responsible for any acts of sexual harassment in the workplace. 

It is also clear that senior business leaders and owners are repsonsible for ensuring a business is compliant with the postive duty. This means business owners, managers, Board members and the CEO must be informed about the steps their organisaiton is taking to prevent and respond to unlawful behaviour, its implementation, communication with workers and record keeping. It is not a 'set and forget' either. An annual review should take place, including refresher training, review of risks and reported incidents.

Australian Human Rights Commission (AHRC) guidelines for compliance with the new positive duty.

It is important to be aware that the AHRC, the regulator responsible for the enforment of the positive duty, has set out seven 'standards' in relation to the new positive duty, which it expects employers to meet in order to satify the positive duty.

Standards:

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

Guiding Principles:

1. Consultation with workers about what is needed for a workplace to be (and feel) safe and respectful.

2. All actions to implement the positive duty should contribute to achieving gender equality - where people of all genders have equal rights, rewards, opportunities and resources.

3. Consider the different identities (known as 'intersectionality')of workers (eg women, young, disabled, Aboriginal and Torres Strait Islander, migrant, LGBTIQ+ status) and how they may overlap and exacerbate a worker's experience of discrimination and harassment in the workplace.

4. Person-centred and trauma-informed support for individuals who experience unlawful conduct. Being person-centred and trauma informed does not always mean doing what a person requests, but it does mean keeping the person who reports or discloses at the centre of decision-making and genuinely considering their wishes and the impact that decisions may have on them.

Under the new laws, Australian businesses must:

1. Conduct workplace risk assessments to identify potential issues related to sexual harassment and other unlawful behaviour.
2. Implement effective policies and procedures that address these risks and comply with the legislative framework.
3. Provide regular training, primarily focused in-person, to employees, tailored to their level of responsiblity.
4. Monitor and review practices to ensure continuous improvement and compliance.
5. Take action immediately if a breach occurs or is reported, including conducting investigations and addressing systemic issues.

Proactively meeting these positive duty obligations not only reduces the legal risks but also enhances employee satisfaction in a workplace they feel safe and respected in. 

How ABLA can help

As experts in this field, and our team can help you implement effective measures that meet your legal obligations and support your business goals. To save you time, money and resources, we have created a "Sexual Harassment Positive Duty Toolkit' that can be used in a small business or a large corporate.

In conjunction with this tookit, ABLA can offer training for the Board, Managers, and Employees. Our public training courses run throughout the year or we can bring the course inhouse and train all your employees. 

Should you receive a complaint or disclosure of unlawful behaviour, calling ABLA at the beginning will ensure the investigation is handled efficiently, sensitively and legally. 

Get in touch via the form on this page if you'd like to discuss a sensitive matter or unlawful behaviour in your workplace. The additional resources below will provide further information on this subject.