Positive Duty and the Sexual Discrimination Act

In line with the Sex Discrimination Act 1984, organisations and businesses have a positive duty to eliminate, as far as possible, sexual discrimination and harassment and associated behaviours from occurring in the workplace.

Behaviours of concern include any behaviour which might make someone feel uncomfortable, unsafe or disrespected at work or in connection with their work. Some examples of such behaviour may include:

• Sexual harassment including unwelcome touching
• Unwelcome conduct, communication and language of a sexual nature
• Treating someone unfairly because of their sex (discrimination)
• Victimisation, such as treating some unfairly who has raised a concern or a complaint in relation to experiencing or witnessing unwelcome behaviour (sexual harassment)

This positive duty means that employers have a responsibility to take proactive steps to avoid these behaviours from occurring in the workplace (risk minimisation). The positive duty therefore means that it is not sufficient for an employer to merely respond to and address a concern or complaint if it is brought to their attention – but they need to take action to ensure that all employees feel safe and respected at work.

It is also imperative that if a complaint or concern is raised that it is responded to appropriately, meaning that steps need to be taken to ensure that the employee raising the concern or complaint can be supported to feel safe and respected at work.

There is no leniency with the new rules related to a lack of resources or because you may run a small business. A sole trader has just as much obligation to take steps to comply with the laws as a large organisation.

The Australian Human Rights Commission (AHRC) has recently published detailed guidelines to help employers and persons conducting a business to comply with the new positive duty to eliminate sexual harassment and discrimination in the workplace. The guidelines list seven different standards to be addressed in every work environment. These are briefly summarised below.

1. Leadership – educate your leaders about the positive duty and train them to know how to identify unlawful conduct and how to prevent this from occurring in your workplace. Leaders should serve as positive role models on appropriate and safe behaviour.
2. Culture – establish a culture of psychosocial safety in your workplace. Ensure that your employees feel respected at work and encourage them to speak out if they have any concerns.
3. Knowledge – have policies in place which describe appropriate conduct and behaviour, and what actions will be taken if the policies are breached – such as how a complaint will be made and how it will be responded to. Communicate these policies to all employees and ensure that they comprehend and acknowledge them.
4. Risk management – much like you may approach physical safety in the workplace, take steps to identify and manage risks and hazards related to psychosocial safety and bad behaviour.
5. Support – consider what you can put in place across your business to ensure that employees feels supported if they experience or witness sexual discrimination or harassment in the workplace. For example, this might include having trained contact officers or providing access to an Employee Assistance Program (EAP).
6. Reporting and response – provide a clear process to your employees on how to make a complaint, and how it will be responded to. Respond to any complaints consistently and as quickly as possible.
7. Monitoring, evaluation and transparency – regularly review your related policies, supports and pro-active steps taken in relation to prevention. Create records of any complaints received and identify any areas for improvement.

As of 12 December 2023, the Fair Work Commission has new powers to investigate and enforce compliance with the positive duty. The Commission has developed guidance materials to help organisations and businesses to understand their responsibilities and the changes they may need to make to meet these new legal obligations.

Some useful tips to comply with the positive duty include the following:

• Ensure that you have appropriate and up to date policies in place to comply with the positive duty obligations. For example, this may include a Code of Conduct Policy, Respect at Work Policy, and a Bullying and Harassment Policy. Make sure that these policies are accessible and transparent and not buried away in an induction document that might never be seen again.
• Openly and frequently discuss with your team what is and what is not positive and safe behaviour at work. You might do this at meetings or toolbox talks for example.
• Embed prevention in your workplace culture by educating and training all employees in the business about their right to feel safe and respected at work, and their responsibility to ensure that others feel safe and respected too.
• Introduce the positive duty and prevention of sexual discrimination and harassment at your senior leadership and safety meetings as a standard agenda item.
• Consult with your employees about their psychosocial safety and regularly review your workplace for risks and hazards.

Fortunately, as one of our clients, you have access to a suite of resources including template policies. Join HR Advice Online for free to access some of these valuable resources. HR Advice Online can also provide training around Bullying and Harassment – get in touch with our team if you would like to discuss a training program.

For support and guidance in meeting your obligations around positive duty in relation to sexual harassment and discrimination please contact us at [email protected] or 1300 720 004.

Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up to date at the time of reading. It is not legal advice and should not be treated as such.