Sexual Harassment 'Positive Duty'

Have you carried out your 'positive duty'?

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 Commissioner's Respect@Work Report, the Federal Government changed the law in late 2022. New avenues for employees to pursue claims and the Human Rights Commission's 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.

Education and training are a key component of this new legislation. Ignorance is no defence so every business must conduct regular training and education for all employees, including the Board, ELT, managers and all staff.

What can you do today to demonstrate you're taking reasonable steps to eliminate this behaviour from your workplace?

1. Train your Board, Managers and Employees on expected and unacceptable behaviour in the workplace.
2. Follow the six-step approach below using our dedicated toolkit resource.

Now is the time to conduct a health check in your business, identify risk areas and put in place preventative measures that will reduce the risk of sexual harassment, sex-discrimination, sex-based harassment, a hostile workplace environment or victimisation in your workplace. Don't know where to start? We've taken the leg work out of this process and set up a simple guide that walks you through the processes and procedures to follow.

ALBA's Sexual Harassment 'Positive Duty' Toolkit will take your business through six simple steps. Each step has a suite of tools to use, templates to download and use in your business and a short video to help. This toolkit is designed to save your business hundreds of hours in establishing a system that you can use annually.

What's in the toolkit?

This six-step guide will give you peace of mind that your business is doing the minimum expected by the regulators. The toolkit gives you:

• 39-page 'How-to Guide' on sexual harassment 'positive duty' in the workplace.
• Six steps you need to follow.
• Seven short instructional videos to guide you through the process, including one on 'Knowledge' that can be used as part of your inhouse induction training.
• 15 tools including checklists, templates, processes to follow, draft emails, posters to display, and a policy document to download and use immediately in your business.

What's considered 'reasonable steps'?

The new legislation refers to demonstrating you have carried out steps that are 'proportionate and resonable' to eliminate this unlawful behaviour in your workplace. To avoid liability, all employers need to demonstrate they have:

• taken all reasonable and proportionate steps to eliminate sexual harassment and related unlawful behaviour from occurring in their workplace AND
• responded appropriately to resolve reports or disclosures of sexual harassment and other unlawful behaviour if they arise.

What will be considered ‘reasonable’ will of course differ from business to business, depending on things like business size, resources and the cost of taking certain precautionary steps. However, it is abundantly clear that all employers, in all business, no matter the size, need to be taking active steps to eliminate sexual harassment in the workplace before it occurs, or risk being held legally responsible. Ignorance is no defence and regulators will pursue non-compliance.

A large part of this responsiblity is leading by example, from the top down, and training and educating your employees on what is not acceptable behaviour. It should also include carrying out a risk assessment at every work site, setting up clear procedures for reporting or disclosing unlawful behaviour, and having a process for investigating any reports or disclosures.

There is alot to dissect and it can be overwhelming for a business to know where to start. As part of our commitment to helping businesses manage their legal obligations, ABLA created this toolkit so you can implement what is required immediately. 

Don't suffer the cost of inaction, act now, educate your employees and demonstrate what is acceptable behaviour before something happens. Remember ignorance is no defence in the eyes of the regulator. This toolkit will set your business up in demonstrating your positive duty. Get in touch for a demonstration and costings by completing the Contact Us form on this page today.