Navigating Positive Duty Enforcement: It’s Not Just the AHRC
Introduced in December 2023, the positive duty requires Australian businesses to take proactive steps to prevent sexual harassment and related misconduct. The Australian Human Rights Commission (AHRC) holds federal enforcement powers under the Sex Discrimination Act 1984 (Cth), but it is no longer the only regulator with teeth. State WHS regulators, including SafeWork NSW, WorkSafe Victoria and WorkSafe Queensland, now enforce the same underlying conduct as a workplace health and safety risk, with their own investigation powers, notices and penalties.
While many businesses are committed to fostering safe workplaces, navigating AHRC requirements can be complex.
This article will cover:
- How the AHRC and state WHS regulators initiate investigations into suspected non-compliance.
- The range of enforcement powers each regulator has at its disposal.
- Practical steps your business can take to minimise the risk of non-compliance across every regulator that can reach you.
- How you can proactively create a culture of respect and safety, potentially avoiding costly investigations and reputational damage.
AHRC Positive Duty Investigations: How They Work
The AHRC can launch an investigation into your business if they have a ‘reasonable suspicion’ you’re not meeting your positive duty obligations. This suspicion can arise from a variety of sources:
- Government reports: Regulatory bodies might flag potential issues.
- Individual complaints: Employees who’ve experienced or witnessed sexual harassment can file complaints.
- Unions and worker representatives: Unions or employee representatives can raise concerns.
- Media reports: Public attention to harassment incidents can trigger investigations.
Separately, state WHS regulators can open their own investigations, using their own triggers. SafeWork NSW, WorkSafe Victoria and WorkSafe Queensland all monitor compliance and can act on notifications, complaints, incident reports or routine inspection activity, independent of anything the AHRC is doing. In Victoria, WorkSafe and the Victorian Equal Opportunity and Human Rights Commission run a formal parallel enforcement arrangement, sharing information and referring matters between each other. In Queensland, failure to have a written sexual harassment Prevention Plan is itself a trigger for action, regardless of whether an incident has occurred.
Key takeaway: More than one regulator can investigate the same conduct, from more than one angle, without your consent, so proactive compliance across all applicable frameworks is crucial.
AHRC Investigative Powers
The AHRC takes a proactive approach to enforcing the positive duty. Here’s what you need to know about their investigative powers:
- No Consent Required: The AHRC has the authority to launch an investigation into your business’s positive duty compliance without your consent.
- Compelling Information: During an investigation, the AHRC can compel your business to produce documents and information relevant to the inquiry. This could include employee records, policies, and communication materials.
- Witness Interviews: The AHRC has the power to summon witnesses for questioning as part of their investigation. This could involve employees, managers, or anyone who may have relevant information.
Understanding these investigative powers underscores the importance of having a well-defined compliance plan in place, to demonstrate your commitment to creating a safe and respectful work environment.
State WHS regulators (SafeWork NSW, WorkSafe Victoria, WorkSafe Queensland):
- Inspection Powers: WHS regulators can inspect workplaces and monitor compliance as a matter of course, not only in response to a complaint.
- Improvement and Prohibition Notices: Regulators such as WorkSafe Queensland can issue on-the-spot fines, improvement notices and prohibition notices where risk controls, including written prevention plans are inadequate.
- Prosecution: Serious or ongoing breaches of WHS duties can be prosecuted, carrying penalties separate from and in addition to anything the AHRC or a discrimination-law regulator can pursue.
Understanding these overlapping powers underscores the importance of a compliance plan that satisfies both the federal discrimination-law framework and the WHS framework in every state your business operates in.
AHRC Enforcement Toolkit: What They Can Do
If the AHRC investigation reveals areas where your business might not be meeting the positive duty, they have a range of tools to address non-compliance including:
- Compliance Inquiries and Recommendations: The AHRC can conduct a thorough investigation into your positive duty compliance practices. Following the investigation, they may offer recommendations to help you achieve compliance.
- Compliance Notices: If the AHRC finds clear non-compliance, they can issue a formal compliance notice. This notice will outline specific actions your business must take to address the issues, like implementing anti-discrimination training or revising reporting procedures.
- Court Orders: In serious cases, the AHRC can apply to the federal court for an order to enforce compliance. A court order compels your business to take specific actions mandated in the compliance notice.
- Enforceable Undertakings: The AHRC can also work collaboratively with your business to achieve compliance. This might involve entering into an enforceable undertaking, a formal agreement outlining the specific actions your business agrees to take to meet the positive duty requirements.
- WHS Notices and Fines: State regulators can issue improvement or prohibition notices, and, as in Queensland, on-the-spot fines for failing to prepare, implement or review a required prevention plan, attracting penalties even where no incident of harassment has occurred.
- WHS Prosecution: Serious WHS breaches can be prosecuted through the courts, separately from any AHRC process.
Key takeaway: The AHRC doesn’t directly impose financial penalties, but WHS regulators do and the two enforcement tracks can run at the same time over the same underlying conduct.
Beyond AHRC Enforcement: Legal Consequences
While the AHRC plays a crucial role in enforcing the positive duty, failing to meet your obligations can have broader consequences:
- Court-Ordered Remedies: Beyond AHRC investigations, businesses found liable for inadequate responses to sexual harassment claims can face lawsuits. Courts may order remedies for victims, such as compensation.
- Reputational Damage: Public awareness of sexual harassment incidents or legal action against your organisation can severely damage your business’s reputation. This can impact recruitment, employee morale and ultimately have financial ramifications.
The potential consequences of non-compliance extend far beyond AHRC enforcement. Developing a robust positive duty compliance plan demonstrates your commitment to fostering a safe and respectful work environment, minimising legal risks and protecting your reputation.
Read this case study to understand the real-world impact of inadequate responses to sexual harassment claims.
Developing a Positive Duty Compliance Plan: Practical Steps for Businesses
Because more than one regulator can act on the same conduct, a compliance plan built only around the AHRC’s 7 Standards is no longer enough on its own. Businesses should build a plan that addresses the 7 Standards of Positive Duty while also meeting state-based WHS obligations, including:
- Leadership Commitment
- Fostering a Respectful Workplace Culture
- Employee Education
- Clear Reporting Procedures
- Comprehensive Response Measures
- Written Risk Controls and Prevention Plans — required in some states (such as Queensland) regardless of whether an incident has occurred, and increasingly expected as good practice elsewhere.
A strong compliance plan not only fosters a safe and respectful work environment, it also minimises the risk of costly investigations, from any regulator, and potential legal consequences.
In Conclusion: Enforcement Requires a Collective Effort
The AHRC’s role in enforcing the positive duty ensures a collective effort towards preventing sexual harassment in Australian workplaces. Understanding the AHRC’s enforcement powers empowers businesses to take proactive steps towards compliance.
By developing a robust positive duty compliance plan, you demonstrate your commitment to creating a safe and respectful work environment for all employees. This not only mitigates the risk of AHRC investigations and potential legal action but also fosters a positive and productive workplace culture.
Don’t navigate positive duty compliance alone. We can offer resources and expert guidance to help you develop a comprehensive plan that meets your business’s specific needs across every regulator that applies to you. Contact us today.
