A breakdown of Respect at Work legislation according to your role
The positive duty in the Sex Discrimination Act is a new legal obligation affecting Australian businesses. It states that, as of December 2023, all organisations and businesses in Australia have a legal duty to take ‘reasonable and proportionate measures’ to eliminate and prevent unlawful conduct in their workplaces.
Meeting your positive duty obligations starts with understanding who in your business is responsible for preventing workplace sexual harassment, sex discrimination and other unlawful behaviour. It also means knowing what the Australian Human Rights Commission expects from each role.
It’s important to understand who in your business is responsible for compliance with positive duty so that you or your employees don’t commit unlawful conduct in your workplace.
In this article, we’ll outline the different roles within a business and their respective responsibilities when it comes to respect at work and sex discrimination legislation.
For an explanation of the positive duty laws, you can read our article, Positive Duty Legislation: What Australian businesses need to know.
Whose conduct does the positive duty cover?
The positive duty applies to all Australian organisations and businesses, including:
- The organisation itself, its employees, workers and agents.
- Conduct between individuals within the organisation.
- Conduct towards the employer or person conducting the business.
- Conduct towards other employees they interact with in their work, such as customers or clients.
- Unlawful conduct by third parties towards employees and workers.
This includes sex-based harassment (sometimes referred to as gender-based harassment) and sex discrimination. The protection also extends to potential employees during recruitment, not only to existing staff. Discrimination on the basis of sexual orientation is also unlawful under the same Act, though it sits alongside the specific positive duty to prevent sex discrimination and sexual harassment, rather than being part of it.
What counts as ‘reasonable and proportionate’?
There’s no single checklist that applies to every business. What’s reasonable and proportionate for a large corporation will look different for a small family business. The Australian Human Rights Commission assesses this by looking at:
- The budget available.
- The nature of the work environment.
- The practicality of the measures being proposed.
This is also why positive duty obligations require preventative action rather than a reactive response after a complaint is made. The commission’s role includes investigating potential breaches and issuing compliance notices where a business or organisation‘s resources haven’t been reasonably applied to prevent harm. That’s why it pays to put proportionate measures effectively in place from the outset, rather than waiting until a concern is raised.
Roles and responsibilities: how can various employees comply with positive duty
1. Directors
Responsibilities of directors under the positive duty requirements:
Directors oversee the management and governance of an organisation. They typically owe duties to the company that are designed to protect it and its stakeholders.
Directors bear a significant responsibility under the positive duty requirements to create a workplace environment free from discrimination, harassment, and other forms of unlawful conduct.
This includes:
- Leadership: Leaders must be actively engaged in developing sexual harassment and gender equality measures, and ensuring that they are implemented. They must recruit the right leadership team, hold them to account and create a culture of safety and respect from the top.
- Culture: Directors are obliged to create a culture of respect, justice and safety. They should encourage speaking up and actively promote intersectional gender equality.
- Knowledge: Directors should create and build knowledge through policies, strategies, resources and effective communication.
- Risk management: Directors need to manage sexual harassment risks as part of workplace health and safety.
- Support: Directors must ensure there is appropriate support available for all employees, including leaders and managers.
- Reporting and Response: Directors need to encourage reporting and ensure there aren’t any negative repercussions for doing so. The organisation should deal with reports of sexual harassment constructively. Reporting and response processes work best when they’re trauma-informed, so an employee raising a complaint feels supported to come forward rather than deterred from doing so.
- Monitoring, evaluation and transparency: Directors should contribute to developing a set of metrics that will be regularly monitored by the board. Directors should set expectations for board reports to include data about early indicators and risk factors, particularly around culture and gender equality.
Consistent monitoring also helps directors spot systemic issues early, before they turn into a formal complaint or a wider culture problem.
Directors play a critical role in setting the tone from the top and establishing a culture of compliance within the organisation. By demonstrating a commitment to compliance with the positive duty requirements, directors send a clear message to employees and stakeholders that unlawful conduct will not be tolerated.
Directors who fail to act on these duty obligations can ultimately be held liable for the unfair treatment and harm experienced by employees, which is why leadership commitment sits at the centre of all seven standards.
2. Managers/Supervisors
The role of managers/supervisors in the positive duty:
A manager or supervisor is any person with responsibilities for managing other workers. This includes senior leaders, team leaders, supervisors, executives, line managers, people managers and other managers.
When it comes to the positive duty under the Sex Discrimination Act, managers and supervisors are particularly expected to step up when it comes to ‘Standard 2: Culture’.
Managers shape work culture. They play a key role in shaping a positive workplace culture built on:
- gender equality
- diversity
- inclusion
- safety and respect
Taking proactive steps at this level helps create safe, respectful teams, since managers are often the first to notice early warning signs of a bigger cultural problem.
Practical ways a manager or supervisor could help their organisation meet positive duty Standard 2: Culture
Modelling respectful behaviour
Managers and supervisors can comply with positive duty laws by modelling respectful behaviour.
Examples:
- Using respectful and inclusive language.
- Calling out disrespectful behaviour (including behaviour of third parties).
- Undertaking self-reflection and seeking feedback.
Consistent, visible modelling like this is one of the most effective policies a manager can put in place, because it sets the standard for everyday behaviour across the whole team.
Communicating
Managers and supervisors need to regularly and clearly communicate expectations about respectful and acceptable behaviour, and the consequences for engaging in unlawful conduct.
Examples:
- Regularly communicate expectations to workers in person, through induction and team meetings.
- Ensuring that messages are reinforced in writing, such as through emails, posters, notices or brochures in the workplace.
- Making policies, organisational values or strategies available to read.
- Calling out positive behaviours in staff meetings.
Ensuring a safe online environment
Leaders and managers need to take action to ensure that online working environments are safe and respectful.
Examples:
- Moderating the chat function in online meetings and removing disrespectful and discriminatory content.
- Educating workers on acceptable, respectful and safe online behaviours.
Accountability and support
Leaders and managers can hold people accountable for their conduct and encourage workers to do the same.
Examples:
- Calling out disrespectful comments (e.g. something that might be classified as ‘everyday sexism’).
- Refusing service or entry to customers or clients who engage in relevant unlawful conduct.
- Having discussions with workers who engage in disrespectful behaviour or relevant unlawful conduct.
- Ensuring that appropriate disciplinary processes are implemented, and consistent and proportionate consequences applied, for workers who engage in relevant unlawful conduct.
- Ensuring that people who engage in relevant unlawful conduct are not protected, rewarded or promoted (including third parties such as ‘high value’ customers or clients).
3. Employees
The role of employees in positive duty:
The positive duty requirements primarily place obligations on employers and organisations to take proactive measures to eliminate relevant unlawful conduct within the workplace.
This means that employees do not bear the same legal obligations as employers under positive duty. However, it should be noted that in Australia, workplace sexual harassment is against the law.
Under the Sex Discrimination Act, employees have a responsibility to:
- Not bully, sexually harass, or harass another person based on their sex.
- Not engage in misconduct.
- Not cause, instruct, induce, aid or permit another person to engage in workplace bullying, sexual harassment or other discriminatory conduct.
- Abide by all lawful and reasonable workplace rules, policies and procedures.
- Comply and co-operate with any reasonable instruction given by their employer.
- Abide by the conditions and requirements of any settlement agreement or court order given in the resolution of a workplace complaint.
An employer can be held legally responsible for the actions of an employee, including being ordered to pay financial compensation, unless it can demonstrate that it took ‘all reasonable steps‘ to prevent the unlawful conduct from occurring. Employees can support that defence, and help prevent harm in the first place, by actively promoting a safe, respectful and inclusive workplace.
Employees who experience or witness this kind of behaviour should feel able to raise their concerns, confident that their employer has a process in place to respond to and satisfy a complaint fairly. Victimisation is also unlawful under the Act. This includes any adverse action taken against an employee’s employment because they made a complaint or supported someone else’s complaint.
4. Contractors
The role of contractors in positive duty:
Contractors, including independent contractors and subcontractors, operate their own businesses and provide services to clients. Due to the nature of their work, contractors can fulfil both employer and employee roles.
Since the positive duty applies to individuals conducting a business or undertaking, as well as employers, it’s important to recognise that the responsibilities of contractors may vary based on whether they hire or subcontract to others.
Under the Sex Discrimination Act, contractors can be categorised into two groups:
- Employers: contractors are considered employers when they are conducting a business. This typically applies to principal contractors and head contractors.
- Employees: contractors function as employees when they are engaged to work under a contract for services.
For contractors who also serve as employers, they are required to proactively meet all seven standards of the positive duty.
For contractors serving solely as employees, please refer to ‘the role of employees in positive duty’ section above.
As covered above, what counts as reasonable and proportionate always depends on your budget, work environment and the practicality of the measures involved. Contractors acting as employers should weigh their own resources against the same standard the Australian Human Rights Commission applies to any other business.
It’s also worth remembering that positive duty obligations under the Sex Discrimination Act sit alongside separate state-based laws. Contractors working across more than one state may need to satisfy more than one set of requirements.
It’s crucial to understand the diverse roles within a business and their respective responsibilities under the positive duty requirements. From directors and managers to employees and contractors, each individual plays a part in upholding a safe and respectful workplace environment.
Meeting these minimum standards isn’t a one-off exercise. It calls for ongoing, proactive steps and genuine continuous improvement across leadership, culture, knowledge, risk management, support, reporting, and monitoring.
Our specialist team are here to help your entire team comply with the seven positive duty standards set by the Australian Human Rights Commission.
Get in touch to learn more about the positive duty obligations of each team member and how we can assist.
Phone: 1300 923 929
