Amanda Lyras
Partner •
Sydney
Your positive duty under the Sex Discrimination Act – getting ready for the AHRC's new enforcement powers
Time to read: 9 minutes
In seven weeks' time, employers must be able to show they comply with the new positive duty in line with the AHRC's detailed expectations, which make it clear that policies and training alone will no longer be sufficient.
From 12 December 2023, the Australian Human Rights Commission (AHRC) will have new powers to investigate and enforce an employer's positive duty to eliminate certain unlawful conduct under the Sex Discrimination Act 1985 (Cth) (SDA), including sexual harassment. These powers include the ability to conduct inquiries, issue compliance notices, seek Court-ordered compliance, and enter into enforceable undertakings.
The AHRC recently released the AHRC's Guidelines for Complying with the Positive Duty and Resource for Small Business to provide businesses with greater clarity about what steps to take to satisfy their legal obligations. It has subsequently indicated that the mining, retail and legal industries will be subject to particular scrutiny.
Organisations of all sizes will need to familiarise themselves with the guidance material – including sole traders, small, medium and large enterprises and government – as it is indicative of what the AHRC will consider when assessing if an organisation has met its obligations under the SDA. Courts may also have regard to the AHRC guidance material in the context of claims alleging a breach of the SDA.
At the heart of the messaging from the AHRC is the expectation that organisations will read the AHRC guidance and critically consider what steps and holistic approach they will implement to satisfy their legal obligations. The AHRC encourages organisations to come up with creative, innovative and bold strategies to advance general equality and a positive workplace culture.
What is the positive duty under the Sex Discrimination Act?
In 2022, the SDA was amended to introduce a positive duty on organisations and businesses to take reasonable and proportionate measures to eliminate, as far as possible, the following unlawful behaviours from occurring in the context of work, workplaces and working relationships:
- sex discrimination;
- sexual harassment;
- sex-based harassment;
- behaviours that create a hostile workplace environment on the grounds of sex; and
- related acts of victimisation.
Each of these are referred to in this article as unlawful conduct.
It is important to recognise the positive duty extends beyond conduct engaged in by employees and contractors in an organisation, to conduct by third parties, such as customers or clients.
The positive duty complements existing obligations under work, health and safety laws but does not replace them – satisfaction of any work, health and safety obligations may require different or additional actions to be taken.
The new powers of the Australian Human Rights Commission
The AHRC will be able to commence an inquiry if it reasonably suspects that an organisation is not complying with the positive duty. This suspicion can arise from other government agencies or regulators, impacted individuals, unions or worker representatives, or from reports in the media.
If any areas of non-compliance are identified, the AHRC will have the power to:
- provide recommendations to achieve compliance;
- issue a compliance notice specifying action that an organisation must take, or refrain from taking, to address any non-compliance;
- apply to the federal courts for an order to direct compliance with a compliance notice; and
- enter into enforceable undertakings with an organisation under which the organisation agrees to do, or refrain from doing, certain things.
Complying with the positive duty
The guidance material sets out seven standards, and four guiding principles that should underpin the implementation of the standards, to guide employers on what they need to do to eliminate unlawful conduct. Each of these are outlined below (the AHRC Guidance material sets out detailed information for each of the standards, but this article is only using examples and is not exhaustive).
All organisations are expected to have measures to address each of the seven standards, but what is "reasonable and proportionate" for each organisation in the implementation of the standards will vary based on its size and nature, its resources, the practicability and cost of the measures, and any other relevant matter.
Guiding Principles
Consultation
What is it? Speaking to workers leads to your organisation being better informed about issues affecting the workplace and consequently what measures may be effective in eliminating unlawful conduct.
What should you do? Talk to your workers about what they need for a workplace to feel safe and respectful and implement appropriate strategies, including to ensure that the voices of people from marginalised and underrepresented groups are heard and considered.
Gender Equality
What is it? Gender inequality is where people of different genders do not have equal rights, rewards, opportunities and resources and is both an underlying cause and consequence of unlawful conduct.
What should you do? Take actions that contribute to achieving gender quality, including action that extends beyond "equal treatment" to achieve "equal outcomes".
Intersectionality
What is it? Different aspects of workers' identities intersect with and impact one another (such as their sex or gender identity, their sexual orientation, any disability or identification as an Aboriginal or Torres Strait Islander).
What should you do? Understand how experiences of discrimination, harassment and victimisation are shaped and increased by overlapping structural inequalities in order to identify and address unique risk factors and intersecting disadvantages.
Person-Centred & Trauma Informed
What is it? Importance is placed on genuine consideration of individual needs, values and preferences (person-centred), and how previous trauma may have affected individuals (trauma-informed).
What should you do? Consider the wishes of individuals and the impacts that decisions may have on them.
Seven Standards
Standard 1: Leadership
Senior leaders are ultimately responsible for ensuring that appropriate measures for preventing and responding to unlawful conduct are developed, recorded in writing, communicated to workers and implemented. While others may assist in implementing relevant measures, senior leaders remain responsible and accountable for the elimination of unlawful conduct.
Examples of actions senior leaders should take to meet this standard (which should be recorded in writing as applicable) include:
- role modelling respectful behaviour, communicating clear expectations about respectful behaviour to workers and third parties who have contact with workers, and making statements that demonstrate their commitment to eliminating unlawful conduct
- keeping up to date knowledge about their role and responsibilities regarding the positive duty, the drivers and impacts of unlawful conduct, how to identify and respond to unlawful conduct, and where to go for advice, information and support as required
- ensuring that appropriate measures are developed to prevent and respond to unlawful conduct that address each standard, and that they are appropriately tailored to organisational circumstances and communicated to workers – and, further, actively overseeing the development and implementation of these measures, reviewing their effectiveness and ensuring they are updated following review
- creating opportunities for workers to safely provide feedback about leadership's performance
- making the prevention of unlawful conduct a leadership priority and demonstrating that such conduct will not be tolerated
- ensuring proportionate and appropriate consequences for people who engage in unlawful conduct, and that workers who report unlawful conduct do not suffer negative consequences for their career progression or health and safety
Standard 2: Culture
A culture of safety and respect that values and advances gender equality, diversity and inclusion is at the core of eliminating unlawful conduct. Culture is influenced by all leaders and managers of people within a business and not just senior leadership.
Examples of actions organisations and businesses should take in addition to the actions set up above at Leadership (which should be recorded in writing as applicable) include:
- paying particular attention to gender balance and diversity when recruiting or promoting which may involve the implementation of a gender equality strategy or taking of "special measures"
- encouraging and supporting all workers to respond safely to unlawful conduct, including encouraging workers to call out and/or report unlawful conduct when it occurs and providing bystander training
- ensuring that online and physical working environments are safe and respectful
- holding people accountable for their actions and ensuring that people who engage in misconduct are not protected, rewarded or promoted
- celebrating positive behaviours, including through recognition and reward
Standard 3: Knowledge
Organisations and businesses should ensure that workers are educated on respectful behaviour and unlawful conduct, as well as the positive duty and their roles, rights and responsibilities in relation to it. Dissemination of materials and tailored training to build knowledge of respectful behaviour and effective education is essential for organisations of all sizes.
Examples of actions organisations and businesses should take (which should be recorded in writing as applicable) include:
- establishing a policy regarding respectful behaviour and unlawful conduct and ensuring it is communicated to workers, consistently followed and regularly reviewed to make improvements
- providing education about unlawful conduct including formal training, supplementary learning opportunities and written materials – medium to large organisations will be expected to engage relevant experts to provide education and training support and advice and use quality industry, sector and profession-based educational resources tailored to their workforce and work environment, reflecting specific risks and challenges
- ensuring information about unlawful conduct, the consequences of engaging in such conduct and where to seek support is included in posters, brochures, factsheets and written policies
Standard 4: Risk management
A risk-based approach, involving identifying and assessing the risk of unlawful conduct, implementing effective control measures and then reviewing those controls implemented, should be taken to address risk in a proactive way and in response to any unlawful conduct that occurs.
Examples of actions organisations and businesses should take (which should be recorded in writing as applicable) include:
- treating unlawful behaviour as both an equality risk and a health and safety risk and ensuring senior leaders are actively involved in and responsible for the risk management process considering the risks inherent in physical spaces, systems of work and workplace profiles
- considering individuals who may be at greater risk of experiencing unlawful conduct, as well as those who experience additional barriers to reporting and seeking support
- implementing effective control measures that relate to the physical working environment, involve changes to work methods and procedures to minimise the risk of unlawful conduct
- regularly consulting workers, their representatives (where applicable) and other relevant stakeholders (including any organisations/businesses with a shared responsibility for workers) in relation to where and when workers are at risk, proposed control measures and the effectiveness of control measures
- using a range of sources of information to consider when and how unlawful conduct may occur and who may engage in it (including reports, industry data, exit interviews and workplace trends)
- establishing and training personnel in the workplace with a specific mandate to address unlawful conduct and providing workers with necessary education, training or instruction to implement control measures
Standard 5: Support
Organisations and businesses should ensure that appropriate support is available to workers (including leaders and managers) who experience or witness unlawful conduct, both formal and informal.
Examples of actions organisations and businesses should take (which should be recorded in writing as applicable) include:
- providing easily accessible information about available supports, including via induction, information available in the workplace, and emails and information on a staff intranet
- ensuring that support is available internally and externally, including support that can be accessed anonymously or without disclosure to the organisation or business – internal support options can include managers, trusted senior workers, HR representatives and nominated contact officers. Critical to the success of internal supports is the availability of training on receiving reports of unlawful conduct. External support options may include employee assistance programs (EAP), 1800RESPECT, a worker's GP, counsellor or a union representative
Standard 6: Reporting and response
Appropriate options for reporting and responding to unlawful conduct should be provided and regularly communicated to workers, including multiple reporting avenues and different resolution options, taking into account the wishes of the person experiencing the conduct. Responses to reports of unlawful conduct should be consistent and timely and minimise victimisation of people involved. Consistent consequences should be applied regardless of the seniority or importance of the people involved.
Examples of actions organisations and businesses should take (which should be recorded in writing as applicable) include:
- communicating reporting and resolution options to workers and ensuring these options are available without workers being required to speak with anyone in the organisation
- ensuring that reporting processes are safe and confidential and multiple pathways are provided to make reports, including internally or externally, informally or informally, and anonymously
- ensuring workers are given a choice in whether they make a formal report and how they do so
- developing a clear process for making and handling reports about senior leaders (including board members), in consultation with workers
ensuring that reporting processes are regularly reviewed for effectiveness, in consultation with workers
Standard 7: Monitoring, evaluation and transparency
Data drives knowledge for organisations on when, where and how relevant unlawful conduct is happening, who is engaging in it, who is impacted by it, and why it might occur.
Examples of actions organisations and businesses should take (which should be recorded in writing as applicable) include:
- collecting appropriate data to understand the nature and extent of unlawful conduct concerning the workforce from multiple sources such as consultation with workers, feedback from third parties and workforce statistics (e.g. in relation to leadership, culture, reports of unlawful conduct, processes for reporting and responding to unlawful conduct, worker understanding of unlawful conduct and worker feedback about the effectiveness workplace initiatives and their experience of any unlawful conduct)
- using data to regularly assess and improve work culture, as well as to develop measures for preventing and responding to unlawful conduct, including via risk identification, evaluation of the effectiveness of actions taken and evaluation of leadership and workplace culture
- being transparent about the nature and extent of reported behaviours that could constitute unlawful conduct concerning workers and actions taken to address it, including with senior leaders, managers and workers
Organisations and businesses should keep records to demonstrate the actions they have taken to meet the standards. Records may include a prevention and response plan, evidence of consultation, attendance records for training sessions, policies and procedures, induction manuals, results of worker surveys and actions taken to address issues raised, gender equality data and strategies, risk reporting and registers, and documented proposed measures to eliminate unlawful conduct by reference to each of the standards (and progress towards the implementation of those measures).
Note the AHRC has established the Respect@Work Information Service, which is a national, trauma-informed service that provides information to assist individuals, employers and organisations to better understand their rights and responsibilities.
Getting ready to implement the standards and comply with your positive duty
Employers must contemplate how their existing framework for preventing and responding to unlawful conduct compares with the guidance provided by the AHRC. In determining what steps are necessary to enhance compliance, particular consideration should be given to the AHRC's seven standards, which address what is expected from employers to show they have discharged their positive obligations.
Beyond simply looking to fulfil the positive duty, addressing unlawful conduct in the workplace is crucial to supporting the health, safety and wellbeing of staff, and a failure to do so can bring significant reputational risks. Additional steps (other than in connection with the fulfillment of the standards) may also be required under the work, health and safety legislation if there is a risk to health and safety, and there are reasonably practicable control measures that could be taken to eliminate or minimise those risks.
Employers should:
- Understand the positive duty: read the AHRC's guidance and familiarise themselves with the different types of unlawful conduct, as well as the upcoming changes in the AHRC's investigative and enforcement powers.
- Conduct a comprehensive assessment: assess their current workplace frameworks, practices, policies and procedures to identify any potential areas of unlawful conduct. Apply the AHRC's guidance to evaluate existing processes – this includes an in-depth consideration of the drivers or underlying causes of unlawful conduct within the workplace such as power imbalances, gender inequality, rigid gender roles, discriminatory community attitudes and norms, lack of accountability, and factors relating to the nature of the workplace (for example, the physical workplace environment and conditions of employment or engagement and systems).
- Identify gaps and risks: analyse the findings from the assessment to identify risk areas. Prioritise these gaps based on their potential impact and likelihood of occurring. Consult with workers to ensure that the plan is informed by those affected or potentially affected by unlawful conduct in your workplace.
- Develop an action plan or "prevention and response plan": create a comprehensive action plan outlining specific steps and measures to address the identified gaps and mitigate risks. For effective compliance, each action should align with the seven standards.
- Implementation of the prevention and response plan: roll out the necessary changes in policies, practices and procedures to align with the requirements of the positive duty. Ensure that any updated expectations, policies and processes are communicated to employees. At the heart of the implementation of any plan is the provision of training to all employees, from top management to front-line staff, on their roles, rights and responsibilities with respect to the positive duty.
- Continuous monitoring and review: regularly review and assess the effectiveness of your framework in addressing unlawful conduct. Continuously refine and improve your compliance efforts based on consultation, review of data and evidence on the current framework, and emerging best practices.
- Report and document: maintain detailed records of all compliance activities, assessments and actions taken to evidence the steps you have taken to satisfy your legal obligation to comply with the positive duty proportionate to your organisation.
Employers are encouraged to contact us for guidance specific to their operations and measures that are proportionate to their organisation.
Get in touch
Disclaimer
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.