Two lawyers outline standards and practical steps for employers to comply with the new positive duty under the Sex Discrimination Act.

The Australian Human Rights Commission (AHRC) has recently published its guidelines to help employers and persons conducting a business or undertaking (PCBUs) comply with the new positive duty to eliminate sexual harassment and discrimination in the workplace, in effect since December 2022. 

The guidelines have been published ahead of the AHRC’s new enforcement and investigative powers, which commenced on 12 December 2023 and allow the AHRC to investigate employers/PCBUs expected of non-compliance with the positive duty requirements (their duty to take ‘reasonable and proportionate measures’ to eliminate unlawful conduct).

The guidelines provide practical guidance to employers to eliminate workplace sex discrimination, provide information on how employers can satisfy their obligations and set out seven expectations of organisations and companies to satisfy the positive duty.

In this article, we’ll help explain the principles and standards, and summarise 112 pages of the guidelines, distilling what HR needs to know.

Details of the standards 

The guidelines are based on seven standards which provide an ‘end-to-end’ framework that employers and PCBUs can use to tailor their approach to preventing unlawful behaviours. These are:

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

Under the guidelines: 

1. Senior leaders should understand the positive duty and know specifically what conduct is unlawful. They are responsible for ensuring appropriate measures are taken, updated, reviewed and communicated to workers.

Importantly, senior leaders should role model respectful behaviour and set the standard for inclusion and equality. It is useful to reinforce the message to senior leaders that, “The standard you walk past is the standard you accept.”

2. Employers and PCBUs should create a safe, respectful and inclusive culture, and workers should be encouraged to report any unlawful behaviour.

A culture that encourages reporting of unlawful behaviour helps prevent potential legal, reputational and financial risks that could otherwise harm the stability of the organisation.

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

4. Employers and PCBUs 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 PCBU is required to eliminate or minimise risks to psychological health and safety. Sexual harassment is a psychosocial hazard that must be eliminated. 

Read HRM’s article on the new psychosocial hazards Code of Conduct.

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

6. 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.  

7. Organisations 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. 

What should employers do?

As immediate steps, we recommend that employers and PCBUs:

• Ensure that senior leaders and managers are informed and engaged about the positive duty – including by having sexual harassment and positive duty compliance as a standing agenda item at board and senior leadership management meetings.
• Regularly consult and engage with workers to discuss measures to eliminate potential sexual harassment risks and hazards. This can also be used as an opportunity to promote a ‘speak up’ culture.
• Identify and assess circumstances that may give rise to the likelihood of sexual harassment incidents. This involves taking a work health and safety approach to sexual harassment and conducting regular risk assessments.
• Evaluate overarching measures that can effectively reduce or remove risks to align with changes to sexual harassment legislation and work health and safety obligations. Consider, for example, a bystander policy under which all workers are obliged to report inappropriate behaviour they witness, even if it is not directed at them.
• Develop practical and proactive plans for prevention and compliance with the positive duty. These should be monitored and reevaluated on a regular basis to ensure they are adequate. 
• Assess policies and training programs to guarantee their effectiveness and alignment with the employer’s obligations.  ‘Tick-and-flick’ training and policies buried within handbooks are no longer likely to be sufficient. There needs to be meaningful engagement from leadership and include all workers. 

Aaron Goonrey is a Partner and leads the Australian Employment & Rewards practice at Pinsent Masons and Emma Lutwyche is a Special Counsel at Pinsent Masons. The advice in this article is general in nature and doesn’t not constitute formal legal advice.

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This article was originally published in August 2023 and is being resurfaced due to the changes coming into effect.