All Australian employers are now required to take active steps to eliminate sexual harassment in the workplace, by way of the creation of the positive duty. The Australian Human Rights Commission (AHRC) considered that Australian employers needed to take greater and more proactive steps to address and eliminate sexual harassment in the workplace, as the AHRC’s enquiry Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, revealed that almost two in five women (39%) and just over one in four men (26%) have experienced sexual harassment in the workplace in the past five years. The creation of the positive duty was recommended by the AHRC to address these issues. The guidelines for complying with the positive duty were also created by the AHRC to provide workplaces with a set of instructions as to what is required by each workplace to meet the new obligations to assist organisations with compliance with the positive duty. These guidelines are proportionate to the size and the nature of the business. This article will explain what the positive duty is, why the positive duty was created, who must comply with the positive duty and the guidelines for complying with the positive duty.
What is the Positive Duty?
The positive duty is a legal duty under the Sex Discrimination Act, for workplaces to take ‘reasonable and proportionate measures to eliminate relevant unlawful conduct’, as far as possible.
The positive duty is an additional mandatory requirement for all workplaces in Australia, to take additional steps, as far as is reasonably practicable, to protect its workers from the already unlawful discriminatory behaviour in their workplace. These unlawful discriminatory behaviours include but are not limited to:
- discrimination on the ground of sex in a work context;
- sexual harassment in connection with work;
- sex-based harassment in connection with work;
- conduct creating a workplace environment that is hostile on the ground of sex; and,
- related acts of victimisation.
The positive duty aims to rectify the systemic issue facing all workplaces but mandating each workplace take responsibility for their own business or organisation and take active measures to address underlying issues of sexual harassment. The guidelines provides Australian employers with assistance and examples of what steps organisations can make to demonstrate that the organisation is being proactive about identifying, addressing and eliminating any sexual harassment in their workplace.
Who Must Satisfy the Positive Duty?
Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must meet the positive duty. This includes sole traders and the self-employed, small, medium and large businesses, and government. The term is intentionally broad to capture all types of working relationships outside the traditional employer/employee model, and to ensure that all workplaces in Australia understand that they are not excluded from the obligation to ensure the workplace is free from risk of sexual harassment. The positive duty applies to all businesses in Australia and ensures that every organisation is taking, or is on notice that they are required to take, reasonable and proportionate measures to eliminate and respond to (as far as reasonably practicable) the above-listed forms of sexual harassment in the workplace.
What are the Positive Duty Guidelines?
The positive duty guidelines are a set of steps and standards that the AHRC have published in order to assist organisations with complying with the positive duty by adhering to these guidelines. It should be noted that the guidelines are not law, but they are a quick reference guide for employers to use in effort to adhere to the legislative obligations under the positive duty. They are considered to be a reasonable threshold for all workplaces to meet in order to satisfy their positive duty.
What is the Purpose of the Guidelines?
The purpose of the positive duty guidelines is to help all Australian employers understand the positive duty, as well as the standards that each organisation is expected to meet and a list of actions that the organisation can undertake to satisfy these new legal obligations. The guidelines assist organisations as they not only explain who has the legal obligation to satisfy the positive duty but also what it means to take ‘reasonable and proportionate’ measures to eliminate relevant unlawful conduct and how the positive duty will be enforced. The guidelines form part of a comprehensive set of material provided by the AHRC to assist all Australian employers in relation to the enactment of the positive duty and other amendments made to the Sex Discrimination Act.
The Positive Duty Guidelines Explained
The positive duty guidelines are a set of guiding principles developed by the AHRC to assist employers and organisations with their compliance with the relatively newly-minted positive duty. As the AHRC has powers to ensure compliance with the positive duty, the AHRC will review the organisation against the four guiding principles and seven standards, as the benchmark to confirm whether the organisation is taking the appropriate measures to ensure safety in their workplace against sexual harassment.
The four guiding principles were created to guide the business or organisation when making decisions, to ensure workplaces are doing enough to eliminate unlawful behaviour and maintain their positive duty. The four guiding principles are:
- Consultation within the workplace – Consult with workers about what constitutes a safe and respectful workplace, regardless of the type of work environment. For example, consultation can occur via email alerts, agenda items in meetings, toolbox talks, and posters.
- Gender equality – Create a workplace where there is harmonisation and equality for rights, rewards, opportunities and resources regardless of gender.
- Acknowledge intersectionality and address it – Intersectionality is the sociological analytical framework which identifies that aspects of an individual’s characteristics can lead to unique combinations of discrimination, disadvantage, harassment and even privilege.
- Be person-centred and trauma informed – Support individual choice, safety, dignity and avoid causing harm.
The seven standards for workplaces set practical actions that workplaces can follow in effort to eliminate unlawful behaviour, thereby complying with positive duty. The seven standards are:
- Standard 1: Leadership – Leadership is demonstrated when an organisation can make evident how their leaders are responsible for ensuring theyunderstand their obligations under the Sex Discrimination Act and that appropriate measures and procedures are put into place in the workforce to eliminate unlawful behaviour. The leaders of an organisation lead by example and set the expectations to the rest of the organisation. The Guidelines on Leadership provide a helpful set of questions that Leaders can review and use to measure against the minimum expectations.
- Standard 2: Culture – The organisation or business must create a workplace culture that is safe, inclusive and respectful to all its staff. To achieve this, the organisation must be diverse and foster gender equality. By creating a safe and respectful workplace culture it empowers the employees to feel they can report unlawful behaviour without fear of prosecution themselves. The Standards provide a helpful set of questions that a business can use as a ‘health check’ to confirm their business has the appropriate culture to comply with its positive duty.
- Standard 3: Knowledge – It is important to recognise that empowering the workforce includes education and training. An organisation should implement a policy and train its employees on expected standards of behaviour, identifying unlawful behaviour and each individual’s rights and responsibilities. The Standards set this out and provide a list of questions that a business can use when developing their staff training to ensure that the basics are being addressed within.
- Standard 4: Risk Management – Organisations must take a ‘risk-based approach’ to the prevention and organisational response to unlawful conduct and behaviour. This is because unlawful behaviour can also be an equality risk and also a health and safety risk. A risk-based approach involves considering and identifying all risks that can occur as a result of the unlawful behaviour and developing risk assessments and controls to mitigate the chance of a risk occurring. The standards provide questions to assist a business in identifying and addressing potential risks.
- Standard 5: Support – It is paramount that workplaces have appropriate support in place for workers who experience or witness any unlawful behaviour. Not only does the support need to exist, but the workers or employees need to be aware of the support that is available to them and how they are able to access this support if required. The standards provide a set of questions that can act as a checklist for organisations to confirm they have adequate support and resources available for their workers.
- Standard 6: Reporting and Response – Organisations and businesses must have a process for employees or workers to report any witnessed unlawful behaviour. The employees must be aware of this process and it should include multiple options for employees or other impacted people. The responses to any reports of unlawful behaviour need to be addressed consistently and within a reasonable time in effort to minimise harm and/or victimisation of anyone involved. The standards provide questions for a business to consider, when determining whether the business has done enough to satisfy their reporting and response standard.
- Standard 7: Monitoring, Evaluation and Transparency – Organisations and businesses must collect the data from the reporting of unlawful behaviour and learn from the data. The data can be used to monitor trends or patterns of unlawful behaviour, which can be a key tool for businesses in taking action to eliminate the unlawful behaviour. The organisation must be transparent to its workers regarding the nature and extent of reported behaviours, including the steps the business is taking to address these reports.
As you now know, all Australian workplaces have an obligation to comply with the positive duty. The guidelines and additional resources provided by the AHRC can provide the framework to ensure an organisation complies with the positive duty and address any gaps that a workplace may have. The four guiding principles can be used as a benchmark when making future decisions and the standards can be used to interrogate businesses current processes and procedures. The risk of unlawful behaviour including sexual harassment (and the associated risks that come with the unlawful behaviour) are ever-present and recurring. Therefore, it is important for businesses to regularly stop and look at the practices occurring within the workplace and to continue to support and educate staff, which will foster a positive culture and satisfy the positive duty.
For more information on the positive duty and guidelines please contact Positive Duty.
