Have you heard about your obligations of positive duty, but are unsure of what it means?
If so, this article is for you. I'll explain what it is, why it's important, and what you should do about it to comply with legislation, provide a safer workplace, and avoid potential costly repercussions.
What is Positive Duty?
Under the Sex Discrimination Act 1984, employers have a legal responsibility to take reasonable steps to prevent sexual harassment and sex-based discrimination in the workplace.
If they fail to do so, they can be held accountable by their employees or representatives for any harassment.
To avoid liability, businesses must show they’ve done everything reasonably possible to stop these behaviours.
This positive duty requires employers to actively work toward eliminating:
Sex discrimination
Sexual and sex-based harassment
Hostile work environments based on sex
Any acts of victimisation
The goal is to create a safe, respectful workplace by addressing these issues as thoroughly as possible.
The question is: How do you practically implement this in your business?
The Guidelines
AHRC (Australian Human Rights Commission) released Guidelines for complying with the Positive Duty.
They require businesses to actively prevent sexual harassment by meeting 7 key standards:
Leadership
Culture
Knowledge
Risk management
Support
Reporting and response
Monitoring and transparency
The key takeaway actions for each of these key standards are:
Providing proper training for employees and leaders.
Building a culture of reporting and accountability.
Implementing policies to prevent and respond to harassment.
Offering support to workers who experience or witness harassment.
Regularly collecting data to improve workplace culture.
If you want to dive into this deeper, the full Guidelines have plenty of practical examples of how businesses can meet each of these standards.
Remember, you're not expected to implement everything listed - you'll need to reflect on what measures are ‘reasonable and proportionate’ given your business, circumstances, etc.
Now the question is: What happens if I don't implement anything, or not enough?
Vicarious Liability
Under the Sex Discrimination Act 1984 and Fair Work Act 2009, employers can be held responsible for sexual harassment committed by their employees or agents if it happens "in connection with" their work.
This means that someone who experiences sexual harassment can take legal action against the employer, not just the person responsible.
This recent addition to the Fair Work Act is a major change.
However, employers can avoid liability if they can prove they took all reasonable steps to prevent harassment at work.
And it is your responsibility, as the employer to show you have done this.
If you don't implement any measures, or they are not deemed proportionate or reasonable considering the potential risks, you are likely at risk of a failure to comply with your positive duty and at risk of a vicarious liability claim for any sexual harassment claims made by employees.
And now, the question is: What should I do?
Practical Actions
The steps below are what I recommend to clients to start with:
Create (or review) policies: Assess your existing procedures for preventing and responding to sexual harassment to ensure they are effective and up to date.
Develop prevention measures: Develop strategies to stop harassment before it happens, including regular training for all staff and clear communication of zero-tolerance policies.
Familiarise with AHRC resources: Make sure that you (and your manager/HR team) understand the Guidelines released by the AHRC, so you (and they) understand legal obligations and best practices.
Put the Guidelines into action: Update your policies, training, and reporting processes to match the AHRC’s Guidelines.
Make sure your business complies with legislation.
If you have concerns about this topic, or need help with compliance, send me an email at sandra@hrconsultingtas.com.au.
Let's make sure your business avoids costly legal issues and supports your staff effectively.
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DISCLAIMER:
The content provided on this website serves as a general information resource on the topics discussed, and should not be considered tailored to specific individual circumstances or a replacement for legal advice. While we exert significant effort to ensure the accuracy of our information, HR Consulting TAS cannot ensure that all content on this website is consistently accurate, exhaustive, or current. Recommendations by HR Consulting TAS and any information acquired from this website should not be regarded as legal advice.
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