All organisations and businesses must have measures in place to address each of the 7 Standards
The Sex Discrimination Act requires all relevant Australian organisations and businesses to have measures in place and to take proactive steps to eliminate unlawful conduct.
The Australian Human Rights Commission can launch an inquiry when it ‘reasonably suspects’ that an organisation or business is not complying with the positive duty. It is worth noting that this can be done without the consent of an organisation or business.
The Commission does, however, recognise that the actions taken will look different for different organisations and businesses. What is ‘reasonable and proportionate’ changes according to circumstance. Measures will look different for different businesses, according to size, structure, activity etc.
The Commission and the courts consider a broad range of factors in assessing compliance with the positive duty.
These factors include:
- Environment
- Resources
- Capability
- Size
Let’s look at each of these factors and see how they may affect how large and small businesses can address and avoid workplace sexual harassment.
How Your Workplace Environment Impacts What’s Reasonable
The specific environment of your workplace plays a significant role in determining what measures are ‘reasonable’ for your organisation.
Factors that contribute to an environment include:
- the size,
- nature of the work,
- industry,
- nature and location of the workplace (including physical or online),
- workplace profile and
- the location of workers.
It’s important to consider these factors when looking at a work environment.
Here’s why:
Risks affect measures
Different environments carry varying risks of sexual harassment. Consider what factors could impact the way you implement measures for mitigating unlawful conduct.
For example, a workplace where workers have a lot of contact with third parties (e.g. retail, health, hospitality, education) or a male-dominated industry might require very comprehensive prevention strategies.
This Sydney Water case study, where an employee was awarded $200,000 in damages, is the perfect example of why it’s important to consider how gender could influence your workplace.
Correct measures save resources
By understanding your specific environment, you can tailor your prevention measures for maximum impact. You don’t want to miss a key area that needs to be a point of focus, but at the same time, you don’t want to waste time and resources producing measures that don’t apply to your environment.
For example, an open-plan office might benefit from creating clear boundaries between workspaces, but this is not relevant to a business with a mostly remote team.
By understanding your unique work environment, you can tailor your Positive Duty measures to have the greatest impact. Our team of experts can help you assess your environmental risk factors and develop a comprehensive prevention strategy.
How Your Available Resources Impact What’s Reasonable
According to The Human Rights Commission, “Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must satisfy the positive duty,”
However, the concept of ‘reasonable and proportionate’ measures under the Positive Duty doesn’t exist in a vacuum. The Commission acknowledges that the resources available to your organisation will play a significant role in determining what’s considered ‘reasonable’.
Here’s what this means for you:
Finances
The Positive Duty doesn’t expect every organisation to spend the same amount. However, having a small budget doesn’t absolve you of responsibility. The commission expects organisations like this to take less expensive steps to mitigate risk, such as utilising their free resources, adapting existing procedures and regularly communicating expectations to staff about respectful behaviour.
Conversely, well-resourced organisations are expected to invest in resources and assistance to help them implement comprehensive measures.
Resource Allocation
The Commission will assess:
- how you’ve utilised your existing budget
- whether the allocated budget itself was sufficient considering the risks of workplace harassment and your legal obligations.
The key takeaway is to demonstrate a good faith effort to prevent harassment within the constraints of your resources. This might involve:
- Prioritising Resources: Allocate resources strategically, focusing on measures that address the highest-risk areas in your work environment.
- Scaling Measures: Start with measures you can easily implement and then build upon as your resources increase. For example, a simple reporting process can be a reasonable first step for a smaller organisation.
Remember, the positive duty is about taking a proactive approach to preventing sexual harassment. Even with limited resources, demonstrating a commitment to a safe and respectful workplace culture goes a long way.
How Your Current Capabilities Impact What’s Reasonable
The Positive Duty takes into account not just your resources, but also the capabilities of your organisation. This refers to the skills and expertise available within your company to implement effective prevention measures.
This includes:
Specialised Skills
The Commission will consider your access to specialised HR, risk management and legal capabilities. For instance, a large organisation with a dedicated HR department might be expected to implement more sophisticated training programs compared to a smaller business with limited HR staff.
Building Capacity
The Positive Duty doesn’t require organisations to have all the expertise in-house. Investing in training and development opportunities for your staff to enhance their capabilities in recognising and preventing harassment is a reasonable measure.
Seeking External Support
Seeking external support from consultants or legal professionals is a great way to address knowledge or capability gaps. This demonstrates a proactive approach to addressing your limitations.
Remember, the goal is continuous improvement. As your organisation grows and capabilities develop, you can enhance your prevention strategies to ensure a safe and respectful workplace for everyone.
How Your Workplace Size Impacts What’s Reasonable
The size of your organisation will influence what is seen to be ‘reasonable and proportionate’.
Smaller Businesses (Under 20 Employees):
- You might rely on less formal methods of communicating policies like team meetings or notice boards.
- Training might involve discussions rather than formal courses.
- Anonymous feedback boxes can gather employee concerns.
Small Businesses should not think that the positive duty requirements do not apply to them. This case study is the perfect example of how a small business can still be held vicariously liable. In this case, a Sydney small business (jeweller) was ordered to pay $250,000 in damages.
Medium Businesses (20-199 Employees):
- You’ll likely have more formal structures like handbooks and an HR team.
- Communication might happen through an intranet alongside meetings.
- You can invest in some training like workshops or online modules.
Larger Businesses (200+ Employees):
- You’ll have a developed organisational culture with clear values.
- You’ll likely have a dedicated HR and legal team and access to external experts.
- You can implement comprehensive training programs and access professional support services.
Remember, size is just one factor. The most important thing is to choose measures that you can realistically implement and maintain over time. Consider starting with a few key strategies and building on them as your resources grow.
In conclusion
Focus on what works for you (remember, this isn’t a strict checklist!).
Regardless of your organisation’s environment, resources, capabilities or size, the most important thing is to choose measures that fit your unique situation while still addressing the risks of sexual harassment in your workplace.
- Identify Your Strengths and Weaknesses: Take stock of your current communication methods, training capabilities and budget.
- Choose Practical Measures: Focus on achievable actions that you can implement and maintain effectively. Don’t feel pressured to adopt every strategy at once.
- Start Small and Grow: Begin with basic measures and build on them as your resources increase. Every step you take gets you closer to a safer and more respectful work environment.
By demonstrating a genuine effort to prevent sexual harassment, you can comply with the Positive Duty and create a positive and inclusive workplace for everyone.
If your business needs a tailored solution to this significant compliance regime with very little or no disruption to your operations, get in touch.
