The positive duty was introduced into the Sex Discrimination Act 1984 (Cth) (SDA) late last year, requiring employers to take reasonable and proportionate measures to eliminate unlawful sex discrimination and sexual harassment in their place of work. As detailed in our previous newsletter, the Australian Human Rights Commission (AHRC) has new powers to inquire into, and enforce compliance with the positive duty. These powers come into effect on 12 December 2023.
In the lead up to 12 December 2023, employers should ensure they have robust systems in place to comply with their new positive duty obligations. This requires employers to have systems that go beyond responsive measures that focus on individual complaints. For employers in States that already have a positive obligation (for example Victoria), now is a good time to refresh relevant systems and processes to ensure proactive preventative measures are being implemented.
As stated by Professor Croucher, it requires ‘responsible bystander interaction and workplace leadership’. Employers should focus on creating a workplace culture that is respectful and professional. They can do this by recognising gender and sexual harassment as risks, and also focusing on other risks that stem from race, age and disability discrimination.
Importantly, the AHRC has issued extensive Guidelines for complying with the positive duty that identify guiding principles and standards the AHRC expects employers to implement to satisfy their new positive duty under the SDA.
On 9 August 2023, the AHRC released guidance for employers and ‘persons conducting a business or undertaking’ on how to comply with the new positive duty under the SDA.
The guidelines set out the following seven standards that the AHRC expects organisations and businesses to do to satisfy their new positive duty obligations under the SDA.
What is required?
Ensure that workers in management and governance positions (referred to as Senior Leaders) are aware of their positive duty obligations under the SDA.
Senior Leaders are expected to establish conduct standards, exemplify respectful and inclusive behaviour, and actively exhibit their dedication to creating a safe, respectful, and diverse workplace that promotes gender equality.
Strive to create a workplace culture that is safe, respectful, inclusive, and values diversity and gender equality.
Create and enforce policies addressing respectful behaviour and unlawful conduct.
Educate employees at all levels to promote a safe, respectful, and inclusive environment, including by setting behaviour standards, informing them of their rights and responsibilities, and their role in preventing and addressing unlawful conduct.
Recognise that certain unlawful conduct poses risks to psychological and physical health and safety of workers, and also violates their right to equality, non-discrimination and human dignity.
Ensure appropriate support mechanisms are in place for workers who experience or witness unlawful conduct.
Reporting and Response
Ensure appropriate processes for reporting and responding to reports of unlawful conduct and these are regularly communicated to workers;
Ensure that responses to reports of unlawful conduct are consistent, timely and prevent harm and victimisation.
Monitoring, Evaluation and Transparency
Collect data to understand the nature and extend of workplace unlawful conduct and use it to assess and improve workplace culture and develop prevention strategies.
The Guiding Principles
The guidelines set out four guiding principles to assist businesses make informed decisions about what they need to do to comply with the positive duty. These are identified below.
Consulting employees on creating a safe and respectful workplace by addressing risks and mitigation strategies. It involves ensuring that voices of underrepresented groups are heard.
Gender equality is both a cause and effect of sexual harassment. Therefore, strive for equal rights, rewards, opportunities, and resource access for all genders.
Intersectionality recognises that people’s lives are shaped by their identities, relationships and social factors. An intersectional approach to addressing sexual harassment allows businesses to identify and address unique risk factors along with intersecting disadvantages of various groups.
Person-Centred and Trauma-Informed
Person-centred approaches to addressing sexual harassment require businesses to recognise and meet individual needs. They place the needs, values and preferences of the individual at the forefront.
Trauma-informed approaches to addressing sexual harassment require understanding how trauma impacts people to prevent further harm. They prioritise safety, choice and empowerment whilst recognising the impact of trauma to prevent further harm.
On 27 July 2023, the findings from the review by Elizabeth Broderick & Co into EY Oceania’s workplace culture, work practices and psychological safety was released. The review commenced in September last year, and involved participation by over 4,500 employees (both current and former) across EY’s Australian and New Zealand offices.
The review reported that in the past 5 years, 15% of individuals experienced bullying, with women (17%) more affected than men (13%), while 10% experienced sexual harassment, with women (15%) being more impacted than men (6%). Additionally, 8% of people reported experiencing racism. Importantly, the review found low trust in reporting mechanisms, as a relatively small percentage of those who faced these issues actually reported them - only 36% for bullying, 17% for sexual harassment, and 7% for racism. Moreover, some individuals faced consequences, such as missed promotional opportunities, when reporting incidents.
A number of recommendations made by the review are relevant for employers in discharging the positive duty under the SDA. These include:
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