Positive Duty Standards Explained: What They Mean and How You Can Comply
The ‘7 standards’ are what the Australian Human Rights Commission expects organisations and businesses to do to satisfy the positive duty under the Sex Discrimination Act. The Standards are based on research about the causes of relevant unlawful conduct and what is required to prevent it from happening.
They provide a framework for prevention and response, which organisations and businesses can then tailor to their workforce in order to satisfy their positive duty.
What are the 7 Standards businesses need to address to satisfy the positive duty requirements of Australian business owners?
As a business owner, you need to address 7 standards:
Standard 1: Leadership
Why is Leadership important to positive duty?
Leaders play a critical role in creating safe, respectful and inclusive workplaces that value diversity and gender equality. They are at the forefront of implementing the positive duty Standard 1: Leadership.
Senior leaders hold ultimate responsibility and accountability for the governance and legal compliance of their organisation or business. They are responsible for their own actions, as well as the actions of those who they lead and influence.
Not only must leaders enact concrete measures to satisfy the positive duty, they also set the tone of an organisation, meaning that their attitudes show workers what is acceptable and what is not.
Who are defined as leaders under the Sex Discrimination Act?
‘Senior leader’ refers to any person with responsibility for the management and governance of the organisation or business. The definition of senior leader changes according to the size of your organisation. If you run a small business, the senior leader will usually be the owner and manager. In larger organisations, the senior leadership is usually a team, including the board, CEO, executive leadership team, partners or executive manager.
Ways to satisfy Standard 1: Leadership under the positive duty
- Leaders should understand their obligations under the Sex Discrimination Act.
- Leaders have up-to-date knowledge about what constitutes relevant unlawful conduct.
- Leaders are responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented.
- Regularly reviewing the effectiveness of these measures and updating workers.
- Having leaders be visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality.
- Setting clear expectations and role model respectful behaviour.
Read more about the role of Leadership in satisfying positive duty.
Standard 2: Culture
What is workplace culture?
Organisational or workplace culture is the overall character of an organisation. It can include your values, beliefs, attitudes, goals and work practices.
Culture can be shaped and communicated in 2 ways:
- Formally – through leadership statements, policies, processes, value statements, worker benefits, codes of conduct and official communications.
- Informally – through interactions between colleagues and third parties, attitudes towards working hours, diversity and inclusion.
Why is culture important to positive duty?
Workplace culture is one of the most crucial factors affecting Respect at Work Legislation and the positive duty, because it sets the parameters of what is and isn’t acceptable. It also dictates how any relevant unlawful conduct will be managed if it occurs.
It’s essential that organisations and businesses foster a culture that values:
- safety
- respect
- diversity
- inclusivity
- gender equality
The right culture holds people accountable for their actions. It empowers workers (including leaders and managers) to report relevant unlawful conduct and minimises harm. These values are at the core of eliminating relevant unlawful conduct.
Culture may both influence and be influenced by the physical environment of a workplace. It is also shaped by policies, systems and practices e.g.:
- Policies to support workers with caring responsibilities,
- Policies and practices to address gender bias in recruitment and promotion,
- Practical actions to address ‘everyday sexism’ in the workplace.
Ways to satisfy Standard 2: Culture under the positive duty
- Make sure people feel safe to raise or report experiences or concerns about relevant unlawful conduct, including issues that might not yet be serious.
- Having a ‘no wrong door’ policy, meaning that they will undertake to address issues raised, whether or not the formal processes are used.
- Incentivising and supporting people to raise concerns and make reports.
- Ensuring workers know that there will be no negative consequences from making a report.
- Making sure workers know that appropriate action will be taken and that people will be held accountable.
- Understanding that culture isn’t permanent, so standards need to be regularly readdressed.
- Understanding that within an organisation there can be multiple cultures (‘micro-cultures’) that require individualised attention (e.g. if you have different business locations, teams etc).
- Ensuring senior leaders understand how they are responsible for setting the tone from the top about what is acceptable and valued.
- Making sure your team understands that day-to-day interactions of workers and others in the workplace (such as customers, clients and patients) impact culture.
Read more about the role of culture in satisfying your positive duty requirements.
Standard 3: Knowledge
What is ‘Knowledge’ in the context of positive duty?
Knowledge includes education, training and policies. You should ensure that your business’s education is connected to your organisational values and mission, and provide ongoing opportunities for learning. All education and training you provide to your organisation should be high quality, accessible and effective.
Written policies (i.e. a set of agreed or accepted rules for what is acceptable, and consequences for violating these) need to be drawn up, distributed and explained.
Why is knowledge important to positive duty?
Education is an important way to eliminate relevant unlawful conduct from your workplace because it supports workers to engage in safe, respectful and inclusive behaviour. It helps identify and appropriately respond to unlawful conduct if it occurs.
Education involves understanding:
- respectful behaviour,
- what constitutes relevant unlawful conduct,
- what causes it,
- how often it occurs and
- the harm that it creates is critical to eliminate such behaviours.
Ways to satisfy Standard 3: Knowledge under the positive duty
- Educating workers about expected standards of behaviour, including actions and attitudes that foster equality and respect.
- Educating workers about their rights and responsibilities in relation to safe, respectful and inclusive workplaces and working relationships.
- Providing leaders, managers and workers with easy-to-access information about relevant unlawful conduct, the consequences for engaging in that conduct and where to seek support.
- Making education ongoing, revisiting key concepts repeatedly.
- Providing compulsory formal training and learning for all new and existing workers.
- Including active participation in all training, with space for debate and discussion and opportunities to ask questions, or express doubt and concerns.
- Providing a safe environment for all participants, which may require that certain modules be gender-specific.
- Making sure education material is accessible.
- Having training material that meets the needs and reflect the experiences of all groups, including young workers, women, men, LGBTIQ+ workers, workers from culturally and linguistically diverse backgrounds, culturally and racially marginalised workers, Aboriginal and Torres Strait Islander workers and workers with disabilities.
- Having education and training material available in different formats, with supports provided if requested.
Read more about Standard 3: Knowledge.
Standard 4: Risk Management
What is ‘Risk Management’?
Risk management means that your organisations or business recognises that relevant unlawful conduct is an equality risk and a health and safety risk. You take a risk-based approach to prevent this from happening and to responding if it does occur.
Why is risk management important to positive duty?
Relevant unlawful conduct that violates the Sex Discrimination Act can pose significant risks to the psychological and physical health and safety of workers and others in workplaces. It can violate a person’s right to equality.
It’s so important that business owners do all they can to eliminate the risks of conduct that is unlawful under the Sex Discrimination Act as much as possible.
Ways to satisfy Standard 4: Risk Management under the positive duty
- Regularly identifying and assessing the risk of relevant unlawful conduct occurring.
- Regularly identifying the impact that unlawful conduct might have on the health and safety of those affected.
- Implementing effective control measures to address identified risks.
- Regularly reviewing control measures to determine whether they remain effective and appropriate in controlling identified risk(s) and making adjustments where required.
- Meaningfully engaging and consulting with workers about particular risks of their workplaces.
- Taking time to consider things like the duration, frequency and severity of any identified risks.
Read more about Standard 4: Risk Management.
Standard 5: Support
What is ‘Support’ in the context of positive duty?
Support can take many forms. It can be formal or informal. For example, you might ask a worker whether they’d like to take leave after an experience they’ve had. Or you could provide access to external, confidential counselling through an Employee Assistance Program.
Support should be made available to all workers, regardless of whether they choose to make a formal report or not. It should be person-centred and trauma-informed. Your workers also need to be informed about what support is available, and how they can access it.
Why is support important?
Support reduces the short- and long-term harm of relevant unlawful conduct. It empowers people to make decisions about any action that they may take because of the conduct.
Ways to satisfy Standard 5: Support under the positive duty
- Having internal support options available. These are confidential and prioritise the affected person’s safety and wellbeing.
- Making sure any support offered prioritises safety and minimises harm by being person-centred and trauma-informed.
- Ensuring information about support options is easily accessible to workers (both while at work and when at home).
- Ensuring information about support is able to be understood.
- When a report is made, making support available during the reporting and response process, as well as after it has concluded.
Read more about Standard 5: Support.
Standard 6: Reporting and Response
What is Reporting and Response in the context of positive duty?
Reporting processes are the avenues available for people to raise issues and concerns in your business. These can be formal or informal, internal or external. Response processes are the ways in which your organisation or business responds to relevant unlawful conduct.
Your organisations or business must have appropriate options for reporting and responding to relevant unlawful conduct. These should be regularly communicated to workers and other impacted people.
Why is reporting and response important?
Processes for reporting and responding to relevant unlawful conduct show that behaviours that violate the Sex Discrimination Act is not acceptable. When effective, these processes build trust in the reporting which in turn can help prevent relevant unlawful conduct from happening in the first place.
Effective reporting and response minimises harm to, and victimisation of, people involved.
Ways to satisfy Standard 6: Reporting and Response under the positive duty
- Provide information about reporting and resolution options, including without the need to speak to anyone.
- Having multiple options for reporting relevant unlawful conduct, including internal and external options.
- Having safe and confidential reporting processes that are person-centred and trauma-informed.
- Regularly reviewing your reporting processes to make sure they’re effective
- Responding to reports in a consistent and timely way.
- Having consequences that are consistent and proportionate.
- Considering a variety of outcomes, including sanctions or disciplinary action, as well as corrective actions targeted at behavioural and systemic change.
Read more about positive duty Standard 6: Reporting and Response.
Standard 7: Monitoring, evaluation and transparency
What is monitoring, evaluation and transparency in the context of positive duty?
Monitoring, evaluation and transparency involves the data that an organisation collects around the nature and extent of relevant unlawful conduct concerning their workforce.
In the context of the positive duty, monitoring refers to what data you collect and how, evaluation determines how that data is used and transparency decides what data should be shared and with whom.
Why is monitoring, evaluation and transparency important?
Understanding the nature and extent of any problem is a critical step to eliminating it. Data helps organisations/businesses to understand:
- when, where and how relevant unlawful conduct is happening,
- who is engaging in it,
- who is impacted by it,
- why it might occur.
Ways to satisfy Standard 7: Monitoring, evaluation and transparency under the positive duty
- Collecting data to assist in the identification and assessment of the risk of relevant unlawful conduct.
- Implementing measures to address relevant unlawful conduct (including support options and reporting and response processes) that are regularly reviewed.
- Providing staff information on the nature and extent of relevant unlawful conduct in the organisation/business, as well as actions taken to prevent and respond to it.
Read more about Standard 7: Monitoring, evaluation and transparency.
Our specialist team is available to help you implement the 7 standards of positive duty into your business. Contact us today.
