Proactive Not Reactive Are You Fulfilling Your Positive Duty Obligations

By Jenna-Cuthbertson, Mapien | October 12th, 2023

Respect at Work

Ahead of new regulatory powers of the Australian Human Rights Commission (AHRC) to investigate and enforce compliance with positive duty under the Sex Discrimination Act 1984 that commence on 12^th December 2023, the AHRC has released guidelines to help businesses understand their responsibilities and identify and implement any changes they may need to make to meet their legal obligations.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) to the Sex Discrimination Act 1984 (and other legislation) in December 2022, introduced a ‘positive duty’ on employers and persons conducting a business or undertaking, to actively prevent workplace sexual harassment and sex discrimination, rather than only responding after it occurs.

The introduction of positive duty was a key recommendation in the 2020 Respect@Work: Sexual Harassment National Inquiry Report. Employers and persons conducting a business or undertaking must take ‘reasonable and proportionate measures’ to eliminate, as far as possible, any unlawful conduct which includes discrimination on the ground of sex, sexual harassment, sex-based harassment, any conduct creating a hostile workplace environment based on the ground of sex and any related acts of victimisation.

The AHRC Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) include seven standards and four guiding principles to apply when tailoring the standards to the specific needs of a business, in order to comply with the positive duty.

Summary of Standards

1. Leadership:

It starts at the top. Senior leaders need to understand their obligations and responsibilities under the legislation, including developing, communicating, and regularly reviewing and updating the proactive measures that are in place to prevent and respond to unlawful conduct. Senior leaders need to model safe, inclusive and respectful behaviours and set clear expectations of employee conduct.

2. Culture:

Businesses need to foster a safe, respectful, and inclusive workplace culture, that values diversity and gender equity, mitigates harm, empowers and enables workers to report unlawful conduct, and holds people accountable.

3. Knowledge:

A clear policy outlining the expected standards of behaviour and management of unlawful conduct needs to be developed, communicated and implemented. Businesses need to provide education regarding the expectations of safe, respectful and inclusive behaviours, identify what constitutes unlawful conduct and the consequences of such conduct, workers rights and responsibilities to foster a safe, respectful and inclusive workplace culture, and the roles in preventing and responding to unlawful conduct.

4. Risk Management:

Businesses need to understand and recognise the risk of unlawful conduct to equality and health and safety, and adopt a risk-based approach to the prevention and response to such conduct.

5. Support:

Appropriate support needs to be made available, accessible and communicated to all workers who may experience or witness unlawful conduct, regardless of whether the conduct is reported.

6. Reporting and response:

Businesses need to establish appropriate mechanisms for reporting and responding to unlawful conduct and ensure these channels are clearly and regularly communicated. Responses to unlawful conduct are to be managed in a consistent and timely manner that minimises harm and victimisation, and ensures proportionate and consistent consequences.

7. Monitoring, evaluation and transparency:

It is important for businesses to gather data on unlawful conduct to understand the nature and extent of its occurrence in the workforce, and utilise the information to make improvements to workplace culture and develop preventative measures. Businesses need to be transparent about the nature and extent of reported unlawful conduct and the measures that have been taken to address and further prevent its occurrence.

Guiding Principles

1. Consultation:

Talk openly with employees about what they need to make the workplace safe and respectful, and what can be done to mitigate and eliminate unlawful conduct, to ensure the approach considers those who are or may be impacted.

2. Gender equality:

The approach to positive duty should further enhance gender equity within the business, to ensure people of all genders have equal rights, rewards, opportunities, and resources.

3. Intersectionality:

An intersectional approach recognises and addresses that unlawful conduct may have a different and/or heightened impact on people (i.e., based on their race, religion, sexual orientation, disability etc.) which can also be compounded by other forms of inequality and discrimination.

4. Person-centred and trauma-informed:

This ensures the policies, practices, and systems implemented enable the support of individual needs and minimise the risk of causing additional harm.

No one-size-fits-all approach

The AHRC expects businesses to have ‘reasonable and proportionate measures’ in place to address each of the seven standards. These should be tailored to the individual circumstances of the business or undertaking, which may depend on a range of factors such as the size and nature of the business, the resources available, and the practicability and cost of the measures.