A step in a positive direction: compliance with the Positive Duty under the Sex Discrimination Act

Under changes to the Sex Discrimination Act 1984 (Cth) (the Act), Australian employers now have a positive duty to take reasonable and proportionate measures to eliminate sexual harassment and unlawful sexual discrimination within their organisations (the Positive Duty). The Positive Duty is supported by the Australian Human Rights Commission’s new powers to enforce compliance.

This article outlines the practical steps employers can take to achieve compliance with the Positive Duty.

Background

The Respect@Work: Sexual Harassment National Inquiry Report highlighted the prevalence of sexual harassment and discrimination in Australian workplaces.  It emphasised the significant underreporting of these incidents and how technology and modern work practices contribute to them. The Report called for legislative reform to address these issues.

The changes to the Act and the introduction of the new Positive Duty reflect the recent and significant shifts in public attitudes toward sexual harassment and discrimination following the #MeToo movement.

Positive Duty – overview

The Positive Duty requires the elimination, as far as possible, of conduct in connection with work or in a work context concerning:

• sexual harassment
• sex-based harassment
• discrimination on the grounds of sex
• conduct creating a “hostile workplace environment”, and
• related acts of victimisation.

The Positive Duty obligates employers to eliminate behaviour that may involve or be engaged in by employees, workers, agents or third parties (such as customers, clients, and members of the public). The Positive Duty also applies to employers themselves.

Positive Duty - what is required?

Achieving compliance with the Positive Duty requires a proactive and customised approach from employers, including support from senior leaders within an organisation, to ensure the steps implemented are designed with the organisation’s particular risk-profile in mind.

In particular, employers need to be able to show that they have taken ‘reasonable’ steps to meet the Positive Duty. What is ‘reasonable’ will differ from one workplace to another. For example, workplaces with a lower proportion of women and those where work is performed remotely maybe considered ‘higher risk’ and require a more tailored approach to identify and address specific risks.

The changes to the Act expressly provide that the Positive Duty is intended to operate concurrently with the model Work Health and Safety laws (WHS Laws).  Under these laws, a person conducting a business or undertaking (PCBU) has a duty, as far as is reasonably practicable, to eliminate or minimise risks to workers’ physical and psychological health arising from psychosocial hazards, including sexual harassment and discrimination on the grounds of sex. Importantly, satisfying the WHS Laws may not necessarily satisfy the Positive Duty.

AHRC standards and Guidance

The Australian Human Rights Commission (AHRC) has published seven Standards that it expects employers to satisfy to discharge the Positive Duty as well as Guiding Principles for implementing the Standards. It is likely this framework will be used in any assessment of the effectiveness of an employer’s plan or approach to complying with the Positive Duty.

The seven Standards are:

1. Leadership
2. Culture
3. Risk management
4. Knowledge
5. Support
6. Reporting and response
7. Monitoring, evaluation and transparency

Senior leaders in an organisation must demonstrate an understanding of the organisation’s obligations under the Positive Duty.  They should implement appropriate measures to prevent and respond to relevant conduct, and effectively monitor, review, and communicate these measures to workers. Senior leaders are required to ’role model’ appropriate behaviours.

In addition, risk management requires an employer to identify and assess risks, and determine which risks should be prioritised when determining appropriate control measures.  More serious risks should receive additional or special attention and measures.

The AHRC’s Standards and Guidelines can be accessed here and here respectively.

Consequences of non-compliance

The AHRC now has power to:

• Investigate compliance, including compelling the production of information and materials, as well as examining witnesses.
• Issue compliance notices detailing what actions the business must take or refrain from taking.
• Refer a matter to the Federal Circuit or Federal Circuit and Family Court of Australia for an order for compliance.
• Enter into enforceable undertakings.

Conclusion

Employers and their senior leaders must take action to understand their obligations in relation to the Positive Duty and verify that they have implemented appropriate and effective processes and systems to achieve compliance.