From 12 December 2023 all Australian employers and organisations must take active steps to eliminate sexual harassment, sex-based discrimination and victimisation in the workplace. This means that they need to have a system in place to actively seek out both actual and potential breaches, and both remove and prevent them.  This positive duty is about more than responding to incidents, it is about taking appropriate measures to eliminate unlawful sexual harassment and sex based discrimination conduct.  This change means there are steps all businesses should be taking now.  Starting with ensuring managers understand the changes.

This positive duty extends to all organisations in Australia and places a responsibility on those organisations to protect more than just their own workers.

The coverage of the positive duty extends beyond just workers to incorporate agents and third parties with whom employees come into contact in connection with their work. This extension places a requirement on organisations to address how workers treat third parties, but also how third parties treat employees in a work context, for example, customers, delivery drivers, and other service workers.

The compliance requriements with this positive duty is administered by the Australian Human Rights Commission, who has highlighted that the expectation around what is reasonable in terms of measures, will vary based on the size, structure and resources of the organisation.

“What the Commission has confirmed is that small businesses particularly, will be expected to implement less formal mechanisms, such as using or adapting free resources and services and regularly communicating its policies and behavioural expectations to all its employees”, explains ACAPMAs Elisha Radwanowski.

“Larger businesses will be expected to put into place more comprehensive and formal systems.  What is clear is that all organisations will be required to take proactive and meaningful steps to prevent workplace sexual harassment, discrimination and victimisation, and that training that is appropriate to the size of the business will be critical to this”, continued Elisha.

7 Standards of the Sex Discrimination Act Positive Duty

To effectively satisfy the positive duty under the Sex Discrimination Act, the Commission has set out seven key standards;

 1. Leadership

Senior leaders must understand their legal obligation under the Sex Discrimination Act, including the specificities of unlawful conduct. Their responsibility is to ensure that proactive and responsive measures are developed, reviewed, and clearly communicated to workers. Furthermore, leaders should exemplify respectful behaviour and be committed to furthering inclusion and gender equality in the workplace.

2. Culture

Organisations should foster a safe, respectful, and inclusive workplace culture. This environment should inspire confidence in workers, motivating them to report instances of misconduct, knowing that the system will prioritise their well-being and address any issues.

3. Knowledge

Organisations must establish a comprehensive policy on respectful behaviour and the repercussions of misconduct. This framework should provide workers with clarity on behavioural expectations, mechanisms to detect inappropriate actions, and a thorough understanding of their rights and responsibilities within the workspace. Bystander training may be an appropriate strategy for workplace safety and harassment prevention.

4. Risk management

Organisations must be proactive in identifying and assessing potential risks associated with misconduct, taking into account both equality and the well-being of their workforce. Collaboration with stakeholders on identifying these risks is essential. Strategies should be developed to respond to and, more importantly, prevent these risks.

5. Support

Offering robust support systems is non-negotiable. Workers who witness or undergo misconduct should have immediate access to resources and assistance. This support should remain accessible regardless of whether the incident has been formally reported.

6. Reporting and response

Clear channels for reporting misconduct should be readily available to workers. Regular communication about these pathways is essential. Responses to reports should be swift, consistent, and prioritised to minimise harm to those involved.

The Australian Human Rights Commission encourages organisations to implement anonymous reporting platforms to satisfy the positive duty. Anonymous reporting platforms assist in the early detection of workplace issues and offer secure channels for reporting misconduct.

7. Monitoring, evaluation and transparency

Consistent data collection on workplace misconduct is crucial. Organisations should harness this data to refine their work culture and bolster preventive measures. An open dialogue about the nature, extent, and subsequent actions related to reported behaviours ensures a transparent and accountable workplace environment.

The seven standards are interconnected, meaning actions addressing one might also cater to others. Every organisation and business should adhere to the seven standards, but the application will vary depending on what’s reasonable for each entity. While all entities, even those without employees, are expected to comply, only applicable aspects of the standards will concern those without workers. The Commission will evaluate compliance comprehensively, emphasising that organisations should meet all standards to eliminate discrimination, sexual harassment and other forms of unlawful behaviour in the workplace.

ACAPMA Training for Managers and Staff

ACAPMA has folded the positive duty requriements into the Fuel Convenience Compliance (FCC) training for frontline staff (FCC Level 1) and site managers (FCC Level 2).

The compliance training is tailored to the staff or managers and focuses on operational outcomes.  For more information on the FCC see; https://acapma.com.au/our-services/training/fuel-convenience-retail-training-solutions/

More Information

The Commission has produced detailed information on the positive duty.

Australian Human Rights Commission – https://humanrights.gov.au/our-work/sex-discrimination/projects/positive-duty-under-sex-discrimination-act

Here to Help

This article is general in nature and covers things to consider, implement and watch out for in your business. It is provided as general advice and you should seek further advice on your situation.  ACAPMA Employment Professionals are available to assist ACAPMA members via employment@acapma.com.au. ACAPMA membership is affordable at only $860inc GST per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts.  Visit: https://acapma.com.au/membership/   to learn more or to apply for ACAPMA membership.

Elisha Radwanowski BCom(HRM & IR)
Executive Manager for Employment and Compliance
ACAPMA

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