Australia releases guidelines to comply with ‘positive duty’ to eliminate sexual harassment

Relevantly for employers, the guidelines recommend that senior leaders should seek to understand their obligations under the Sex Discrimination Act (SDA); take precautions to avoid unlawful behaviours; and inform workers what standards of appropriate behaviour are required of them in the workplace. 

Introduced in December 2022, through an amendment to the SDA, the positive duty requires all organisations and companies to take “reasonable and proportionate” measures to eliminate unlawful workplace sexual harassment, sex-based harassment, sex discrimination, hostile work environments on the ground of sex and victimisation related to complaints about these issues.

The guidelines (3.07MB /112-page PDF) apply to organisations and companies of all sizes. They provide detailed information on the definition of positive duty and how to satisfy the positive duty; and set out four principles and seven standards which are expectations to organisations and companies to satisfy the positive duty.

The Commission will use the guidelines to assess compliance with the duty in line with its new enforcement powers, which come into force on 12 December 2023.

The guidelines provide a holistic approach for employers to implement and manage their positive duty. It requires more than simply a policy or training, particularly given the compliance and enforcement powers of the AHRC will commence from 12 December 2023.

What should employers do?

As immediate steps, we recommend that employers:

• Ensure that senior leaders and managers are informed and engaged about the positive duty;
• Consult and engage with employees to discuss measures to eliminate potential sexual harassment risks and hazards;
• Identify and assess circumstances that may give rise to the likelihood of sexual harassment incidents;
• Evaluate overarching measures that can effectively reduce or remove risks in order to align with changes to sexual harassment legislation and work health and safety obligations;
• Develop practical and proactive plans for prevention and compliance with the positive duty; and
• Assess policies and training programs to guarantee their effectiveness and alignment with the employer’s obligations.

The standards

The guidance is based around seven standards which provide an ‘end-to-end’ framework that organisations and companies can use to tailor their approach to preventing unlawful behaviours. These are leadership; culture; knowledge; risk management; support; reporting and response; and monitoring, evaluation and transparency.

Under the guidelines, senior leaders should understand the positive duty and should know specifically what conduct is unlawful. They are responsible for ensuring that appropriate measures are taken, updated, review and communicated to workers. Importantly, senior leaders should role model respectful behaviour and set the standard for inclusion and equality.

Under the guidelines, employers should create a safe, respectful, and inclusive culture. Workers should be encouraged to report any unlawful behaviour under this culture.

Employers are expected to set up a policy in relation to respectful behaviour. They should educate their workers on expected behaviour standards, how to identify unlawful behaviour and relevant consequences, and their rights and responsibilities in workplaces.

Organisations and companies should consult with all stakeholders about sexual harassment risks and hazards and take a “risk-based” approach to prevent and respond to unlawful behaviours. In addition, under work health and safety legislation, a person conducting a business or undertaking is required to eliminate or minimise risks to psychological health and safety. Sexual harassment carries psychological risks that employers must eliminate.

Employers should provide workers who experience or witness unlawful behaviour in workplaces with support. That support should be accessible and readily available, whether or not the conduct has been reported.

Workers should be provided with appropriate options for reporting unlawful behaviour, and those options should be regularly communicated.  All reports should be responded to in a consistent and timely manner, and in a way which minimises harm to victims.

Companies are expected to be collecting relevant data in relation to unlawful behaviours in workplaces. This data should be used to continually improve the work culture and build further precautions to prevent unlawful behaviours. Transparency about the nature and extent of reported unlawful behaviours, and action taken to address them, is recommended.