Sexual Harassment and 'Positive Duty'

What are the new positive duty obligations for employers?

As part of the ongoing response to the Sex Discrimination Commissioner's Respect@Work Report (2020), the Federal Government changed the law in late 2022. From 12 December 2023, employees gained new avenues to pursue claims and the Australian Human Rights Commission (AHRC) gained powers to actually enforce the new ‘positive duty’ on employers.

This new 'positive duty' applies to all employers. No matter the size of your business, you must take "reasonable and proportionate" steps to eliminate sexual harassment and other unlawful behaviour from 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 aren't taken to eliminate sexual harassment and related unlawful behaviour from the workplace, the employer could be held liable and face significant financial and reputational damage to the business.

Whilst most employers would like to think that sexual harassment is not something that happens in their workplace, the reality is confronting: one in every three Australian workers reported having experienced sexual harassment at work, according to AHRC's Time for Respect: Fifth National Survey on Sexual Harassment in Australian Workplace (November 2022).

Who's responsible? Everyone.

The legislation makes it abundantly clear. All employers (in all sectors, no matter the size), must take proactive steps to eliminate this unlawful behaviour before it occurs, or risk being held legally responsible for acts of sexual harassment in the workplace.

And that includes leadership. CEOs, Board members, managers and owners must all understand the steps their organisation is taking to prevent and respond to unlawful behaviour – including how those measures are implemented, communicated to workers, and documented.

It is not a 'set and forget' either. You should review your approach annually – including refresher training, reassessment of your risks and any reported incidents.

Guidelines for compliance (by the Australian Human Rights Commission)

As the regulator enforcing the positive duty, the AHRC has set out seven Standards that it expects employers to meet in order to satisfy their obligations.

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 (e.g. 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.

What's expected of you as an employer

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 to employees, tailored to their level of responsiblity and presented in-person.
4. Monitor and review practices to ensure continuous improvement and compliance.
5. Take immediate action if a breach occurs or is reported, including conducting investigations and addressing systemic issues.

If you engage workers in Queensland, be aware of your additional obligations. The latest changes to the State's Work Health and Safety Regulation 2011 (Qld) (WHS Regulations) requires you to have a written 'Prevention Plan' to manage the risk of sexual harassment and sex or gender-based harassment. Failure to do this could see you incur fines exceeding $29,000.

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. 

Where ABLA can help

As experts in this field, 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've created a "Sexual Harassment Positive Duty Toolkit' suitable for any business – from small operations to large corporations. If you engage workers in Queensland, use our Queensland-specific version: "Sexual Harassment Positive Duty Toolkit (QLD).

Alongside this toolkit, ABLA offers tailored training for your Board, managers and employees. You can also join our public training courses, which run throughout the year and can also be delivered in-house. 

Received a complaint or disclosure? Calling ABLA early ensures any investigation is handled efficiently, sensitively and lawfully.

To discuss a sensitive matter in your workplace, get in touch via the contact form on this page. You'll also find further resources on this topic below.