All Australian employers must now take active steps to prevent sexual harassment in the workplace. This is what’s known as the ‘positive duty’.
The Australian Human Rights Commission (AHRC) found that Australian employers needed to take greater and more proactive steps to address and eliminate sexual harassment in the workplace. This was based on the AHRC’s Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, which 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.
Rather than leaving employers to interpret dense legislation alone, the Australian Human Rights Commission has set out guiding principles and practical actions that any workplace, from sole traders and small businesses through to large organisations, government agencies and everyone in between, can follow.
Taking proactive and meaningful action under the positive duty helps a business reduce the risk factors affecting its people. It also means moving away from a complaints-based approach to workplace safety. Instead, businesses can address relevant unlawful conduct before it causes harm to affected individuals.
This article covers what the positive duty is, why it exists, who it applies to 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 steps, as far as is reasonably practicable, to protect their workers from unlawful discriminatory behaviour in the 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 by mandating that each workplace takes responsibility for its own business or organisation and takes active measures to address underlying issues of sexual harassment.
The guidelines give Australian employers examples of the steps they can take. These steps help demonstrate that an organisation is proactively identifying, addressing and eliminating sexual harassment in its workplace.
A hostile workplace environment does not require a single serious incident. It can build from a pattern of conduct connected to sex, and it is judged on its cumulative effect on the people experiencing it rather than any one moment in isolation.
It is also worth noting that the Sex Discrimination Act more broadly protects workers from discrimination based on sexual orientation and gender identity. While these sit outside the specific list of conduct covered by the positive duty, they are related legal obligations that a genuinely respectful workplace should be addressing alongside it.
Who Must Satisfy the Positive Duty?
The positive duty applies to all organisations and businesses in Australia with obligations under the Sex Discrimination Act. This is regardless of their size or resources.
This includes sole traders and the self-employed, small, medium and large businesses, and government. The term is intentionally broad. It captures all types of working relationships outside the traditional employer/employee model, so no workplace is excluded from the obligation to be free from the risk of sexual harassment. Every organisation must take, or is on notice that it must take, reasonable and proportionate measures to eliminate and respond to these forms of sexual harassment, as far as reasonably practicable.
What are the Positive Duty Guidelines?
The positive duty guidelines are a set of steps and standards that the AHRC has published to assist organisations in complying with the positive duty. It should be noted that the guidelines are not law, but they’re a quick reference guide for employers to help meet their legislative obligations under the positive duty. They are considered to be a reasonable threshold for all workplaces to meet to satisfy their positive duty.
What is the Purpose of the Guidelines?
The guidelines exist to help employers understand exactly what ‘reasonable and proportionate’ measures look like in practice, and how the positive duty will be enforced. They form part of a wider set of AHRC material supporting the changes made to the Sex Discrimination Act.
The Positive Duty Guidelines Explained
AHRC has the power to ensure compliance with the positive duty. It does this by reviewing an organisation against the four guiding principles and seven standards, which act as the benchmark for whether the organisation is taking appropriate measures to keep its workplace safe from sexual harassment.
The four guiding principles guide the business or organisation when making decisions, helping ensure workplaces are doing enough to eliminate unlawful behaviour and maintain their positive duty.
The four guiding principles
- Consultation within the workplace
Consult with workers about what constitutes a safe and respectful workplace, regardless of the type of work environment. - 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 means recognising that a person’s different characteristics, such as their race, age, disability or gender, can combine and overlap. This can shape the type and level of discrimination or harassment someone experiences, and can also affect the level of privilege they hold.
- Be person-centred and trauma-informed
Support individual choice, safety, dignity and avoid causing harm.
The seven standards then set out the practical, day-to-day actions a workplace can take to put those principles into effect. The seven standards are:
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Standard 1: Leadership
Leadership is demonstrated when an organisation can show that its leaders understand their obligations under the Sex Discrimination Act. Leaders are also responsible for putting the right measures and procedures in place across the workforce to eliminate unlawful behaviour.
The leaders of an organisation lead by example and set the expectations for the rest of the organisation. The guidelines on leadership provide a helpful set of questions leaders can use to measure themselves 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. Creating a safe and respectful workplace culture empowers employees to report unlawful behaviour without fear of victimisation. The standards provide a helpful set of questions that a business can use as a ‘health check’ to confirm it 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 its staff training to ensure that the basics are being addressed.
Standard 4: Risk Management
Organisations must take a ‘risk-based approach’ to both preventing and responding 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 means identifying the risks that unlawful behaviour can create, then developing risk assessments and controls to reduce the chance of them occurring. *insert link*
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 to access it if required.
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 to minimise harm and/or victimisation of anyone involved. *insert link*
Standard 7: Monitoring, Evaluation and Transparency
This standard requires organisations and businesses to collect data from any reports of unlawful behaviour, and learn from it. 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.
By now, it should be clear that every Australian workplace has a role to play in meeting the positive duty, and that the AHRC has given businesses a genuine framework, not just a legal concept, to work from.
The four guiding principles can be used as a benchmark when making future decisions, and the standards can be used to interrogate a business’s current processes and procedures. The risk of unlawful behaviour, including sexual harassment, doesn’t go away. It’s an ongoing risk that businesses need to keep checking for.
That’s why it’s important to regularly review what’s actually happening in the workplace, and to keep supporting and educating staff. This is what builds a positive culture and satisfies the positive duty. For more information on the positive duty and guidelines, please contact Positive Duty.
