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Are you Ready for the New Positive Duty on Employers to prevent Sexual Harassment?

Under new laws, employers have a duty to stop sex discrimination and harassment in their workplaces before it happens – and be monitored for compliance. 

Matilda Stoneman, Associate, Workplace Relations at CCIWA’s employment law arm, Business Law WA explains further. 

From 12 December 2023, the Australian Human Rights Commission (AHRC) will have new powers to enforce employers to comply with their positive duty under the Sex Discrimination Act 1984 (Cth).

Employers are obligated to take reasonable and proportionate measures to eliminate unlawful sex discrimination, sexual harassment, sex-based harassment, work environments that are hostile on the grounds of sex, and victimisation (referred to as relevant unlawful conduct). 

What has Changed?

Previously, the Sex Discrimination Act focused on providing a platform for victims to make complaints when they experienced unlawful conduct. This has been replaced by a positive duty obligation as recommended by the Respect@Work Report.   

This change aims to shift the burden of responsibility away from victims raising complaints by establishing a proactive obligation to prevent relevant unlawful conduct in the first place. 

These changes require a systemic shift from responding to harm after it happens, to prevention. 

The positive duty operates concurrently with the requirement under work health and safety laws to provide, so far as is reasonably practicable, a safe working environment. 

Who is Impacted by the Changes?

The positive duty applies to persons conducting a business or undertaking (PCBU) and employers (organisations and businesses). Regardless of size and resources, all organisations and businesses in Australia which have obligations under the Sex Discrimination Act must satisfy the positive duty.  

What Steps can Employers Take to Comply with the New Positive Duty?

The Australian Human Rights Commission has powers to enforce compliance with the positive duty. It has provided guidelines on a set of seven standards detailing practical steps organisations and businesses can take to help satisfy the positive duty.  

  1. Leadership: Senior leaders must understand their obligations and have up-to-date knowledge of relevant unlawful conduct. Senior leaders are responsible for ensuring appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented.
  2. Culture: Foster a culture that is safe, respectful and inclusive, and values diversity and gender equality.
  3. Knowledge: Develop, communicate and implement a policy regarding respectful behaviour and relevant unlawful conduct.
  4. Risk Managment: Recognise that relevant unlawful conduct is an equality and health and safety risk, and should take a risk-based approach to prevention and response.
  5. Support: Ensure there is appropriate support available to workers who experience or witness relevant unlawful conduct.
  6. Reporting and Response: Ensure appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to workers and other impacted people. Responses should be consistent and timely, and consequences consistent and proportionate.
  7. Monitoring, Evaluation and Transparency: Collect appropriate data to understand the nature and extent of relevant unlawful conduct. This data should be used to develop measures for preventing and responding to relevant unlawful conduct.

In addition, organisations and businesses should be transparent about the nature and extent of reported behaviours and what actions have been taken to address these behaviours.

In light of these changes, it is critical employers ensure they have the necessary framework to comply with the positive duty.  

CCIWA has developed three different Respect@Work packages available for employers to support them in meeting their obligations under the new positive duty which include policies and procedures, processes around identifying risk areas, training staff and providing templates to assist with any claims.  

These three different packs have been designed with different business sizes and needs in mind. If you’d like to learn more about these packages and how CCIWA can help your business be Respect@Work ready, contact chris.nunn@cciwa.com. 

Written By Matilda Stoneman – Associate, Workplace Relations

CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.

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