Sexual harassment remains a pervasive issue in workplaces worldwide, affecting individuals and hindering professional development. The Australian Human Rights Commission (AHRC) revealed in the Respect@Work Report that as many as one in three Australian women have experienced sexual harassment in the workplace in the previous five years.
In response to these disturbing statistics, recent legal developments have introduced positive duty obligations for employers (and any ‘persons conducting a business or undertaking’) to eliminate unlawful sex-based conduct including sexual harassment and sex discrimination in the workplace.
This article explores the implications of these duties and the steps Australian employers can take to create safer and more inclusive work environments.
The Positive Duty
The positive duty obligations apply to all employers covered by the Sex Discrimination Act, regardless of the size or nature of the organisation. The positive duty came into operation under the federal Sex Discrimination Act 1984 (Cth) in December 2022 with a grace period of 12 months given to allow organisations time to prepare and implement measures to comply.
From 13 December 2023, the AHRC has the power to investigate and enforce compliance by means of:
- Conducting inquiries into compliance with the positive duty;
- Compelling the production of documents and to examine witnesses;
- Issuing a compliance notice specifying the actions an organisation must take, or refrain from taking, to address any non-compliance;
- Applying to the federal courts for an order to direct an organisation to comply with a compliance notice; and
- Entering into enforceable undertakings with an organisation under which it agrees to do, or refrain from doing, certain actions.
Active, Rather Than Reactive, Duty
A key finding from the Respect@Work Report was that employers were reactive, rather than proactive when it came to sexual harassment and related behaviours. Employers placed an inordinate focus on having a grievance procedure and taking disciplinary action where allegations were proven, without considering measures to prevent such conduct from occurring in the first place.
In contrast to the previous sexual harassment framework, which primarily focused on employers’ responses to incidents, obligations now emphasise proactive measures. Employers must actively take steps to prevent sexual harassment before it occurs, fostering a workplace culture that prioritises respect, equality, and inclusivity.
Employers are required to take all reasonable steps to eliminate from the workplace, so far as is reasonably practicable, ‘prohibited behaviours’, including:
- Sexual harassment
- Harassment on the ground of sex
- Discrimination on the ground of sex
- The creation of a hostile work environment on the ground of sex
- Related acts of victimisation
Preventative Action
The Sex Discrimination Act requires that employers take such positive steps as a starting point to eliminate, as far as is practicable, prohibited behaviours from occurring in the workplace. Preventative action might require, for instance, employers to conduct regular training and periodic risk assessments, even when there have been no complaints.
The AHRC recently published guidance material to assist organisations in complying with the positive duty. These guidelines are intended to help organisations understand the positive duty and outline possible actions which can be taken to satisfy their legal obligation.
As noted in the AHRC publication, there is no one-size-fits-all approach to preventing sexual harassment. Each organisation must consider what measures it can practicably implement, having regard to the size and nature of its business and the resources available. A large organisation with significant resources will likely be expected to take more steps than a small business.
An example given by the AHRC is that a small business might have informal feedback discussions with staff about prohibited behaviours, whereas a larger organisation might have a formal engagement survey. Of course, certain cost-effective measures, such as ensuring senior employees are leading by example and developing policies which identify and condemn prohibited behaviours to set behavioural expectations and workplace culture, can be implemented by organisations of any size.
How can Australian Employers Fulfill their Positive Duty Obligations?
To effectively meet the positive duty obligations and create safer workplaces, Australian employers can take specific steps:
- Develop Comprehensive Policies
Craft clear and comprehensive anti-sexual harassment policies that outline the organisation’s commitment to the issue, define unacceptable behavior, and provide a transparent reporting mechanism. Make these policies readily accessible to all employees.
- Training Programs
Implement regular training programs that educate employees at all levels about sexual harassment, its impact, and the importance of fostering a respectful workplace culture. Tailor training to address specific risks within the organisation.
- Promote Reporting Mechanisms
Establish confidential and accessible reporting mechanisms for employees to report incidents of sexual harassment. Ensure that all reports are taken seriously, investigated promptly, and resolved appropriately.
- Leadership Commitment
Foster a culture of leadership commitment to preventing sexual harassment. Leaders should actively promote a workplace environment that values diversity, inclusion, and respect. Their commitment sets the tone for the entire organisation.
- Regular Audits and Assessments
Conduct regular audits and assessments to identify potential risks and areas for improvement, so employers can stay ahead of emerging issues and adapt their strategies accordingly.
- Employee Engagement
Encourage employee engagement in preventing sexual harassment by fostering open communication channels. Actively seek feedback, involve employees in the development of prevention strategies, and create a sense of collective responsibility.
- Collaboration with Experts
Collaborate with external experts, such as human rights organisations or legal professionals specialising in workplace harassment, to gain insights, advice, and best practices. External perspectives can contribute to a more robust and effective prevention strategy.
Enforcement and Penalties
Breach of the positive duty does not result in a civil penalty. However, the federal courts have broad powers to make any appropriate orders if satisfied that an organisation is not complying with a compliance notice issued by the AHRC. Organisations should also be mindful of the reputational risks of having compliance action taken against them, and the potential impact on retention and recruitment.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on (07) 4724 1016 or email [email protected].
