The Australian Human Rights Commission has published new guidance to help employers comply with the country’s relatively new positive duty to eliminate sexual harassment and discrimination in the workplace.
The positive duty came into force in December last year and introduced a systemic shift in approach from responding to harm after it happens to preventing it before it occurs. The guidance is designed to help employers adjust their focus in that way and sets out a number of principles and standards to help employers stay the right side of the law. The Commission, as the regulator, will use the guidelines to assess employers’ compliance with the duty in line with its new enforcement powers which come into force on 12 December.
Sydney-based lawyer Aaron Goonrey has written about this in some detail in his analysis piece for Out-Law. He says: ‘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’
So, let’s hear more about that. Earlier Aaron joined me by video-link from Sydney to discuss the guidance. First question – why is this in the news?
Aaron Goonrey: “It’s in the news because not only is it topical and front of mind for many companies, it's also front of mind in relation to these enforcement powers which will come into effect as of the 12th of December this year.”
Joe Glavina: “It’s the Australian Human Rights Commission that’s getting these new powers. They are the regulator. Tell me about their role Aaron.”
Aaron Goonrey: ”Well, the Commission actually doesn't, or previously didn't, really have that many, if any, enforcement powers and so this is actually a pivot away from its previous regime of being a regulator that provided guidance and now it's actually going to have enforcement powers to go in and see what employers are doing. It’s going to be able to make recommendations, it’s going to be able to respond to complaints and investigate those complaints.”
Joe Glavina: “So what’s the advice to employers right now Aaron?”
Aaron Goonrey: “Employers really should be looking at what their current state of play is in relation to the positive duty, in relation to what they're doing to eliminate and prevent sexual harassment from occurring insofar as it is proportionate and reasonable in the circumstances, and they should be looking at what they can be doing in the future state. That is, what are they doing not just from a policy or training perspective, but what are they doing to incentivise good behaviour as well as taking appropriate action to address behaviours that are aberrant and that are contrary to the positive duty. And keeping in mind, this isn't what was previously viewed as being a discrimination-type of law, this is now a work health and safety measure which means that all employers have to ensure the safety and wellbeing of all their employees in relation to not just sexual harassment but other things that could cause instances of harm to both someone's wellbeing both psychological and or physical.”
Joe Glavina: “This broadly mirrors what is happening in the UK – we have a Workers Protection Bill which is in the final stages of being approved by parliament over here and it contains a new positive duty on employers to be proactive to prevent harassment, similar to yours. Australia is ahead of the UK on this. What are the challenges you’ve found with your legislation?”
Aaron Goonrey: “I think one of the challenges for employers, and indeed for employees, is actually getting people to speak up about these types of issues, behaviour and conduct. I think it's a real issue for employers more generally, particularly when you're trying to encourage a speak up culture. I think currently there is a lack of information in relation to what the process will look like if someone does speak up. So, what will happen is there is an automatic assumption that either someone will be dismissed - as in that their complaint will be dismissed, not their employment that they'll be dismissed, that their complaint will be dismissed - that they'll either be marginalised and/or victimised because they've spoken up, or that their complaint will be investigated, and they don't necessarily want an investigation because they're not sure of what the outcome will be. Going back to what we were discussing before about the enforcement powers of the Australian Human Rights Commission, it could be that what employees do is that they go to the Commission as an external regulator and make their complaints known there in terms of speaking up and making complaints about what's happening in their workplace, as opposed to taking it to their employer and that brings me to the other issue of ensuring that you have a culture which encourages speaking up because that would allow the employer to address the issue before it goes external to the regulator.”
Joe Glavina: “Any final message for HR professionals watching this Aaron?”
Aaron Goonrey: “I think my key message would be not to overthink this and to put yourself in the position of an employee who may have a complaint or a grievance in relation to any type of inappropriate behaviour, but particularly in relation to sexual harassment and think about, if that was me, what would I need to know and what would make me comfortable in coming forward? I think in terms of complying with the positive duty, doing things that many employers already are doing but emphasising it, and bringing it to senior leaders’ attention, that that you do have a positive duty as an employer, that you are required to do certain things, and you should be educated, trained, and aware of the various processes and procedures that you have as an organisation and what you should be availing yourself of, and encouraging managers to also enliven a speak-up culture within the organisation to actually encourage, and promote, and endorse what that looks like for that particular organisation. No one-size-fits-all, it's going to be different according to the organisation, but I think that senior leadership buy-in is very very important. It’s something that's been lacking not just in Australian jurisdictions but, in my experience, in other jurisdictions as well. Bringing the leadership along for the ride isn't necessarily the best solution. It should actually come from the leadership and informing them about what that looks like in terms of a holistic approach and what they can do as leaders to, as I said, promote, endorse and support it.”
Aaron’s analysis piece gives the background to this and explains how the Commission’s new guidance fits into it. That’s: ‘Australia releases guidelines to comply with ‘positive duty’ to eliminate sexual harassment’ and we’ve put a link to it in the transcript of this programme for you.
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