Employers Positive Duty Obligation
Introduction
Under the Sex Discrimination Act 1984 (Cth), organisations and businesses have a legal duty to take ‘reasonable and proportionate measures’ to eliminate relevant unlawful conduct as far as possible in the workplace or in connection to work. Otherwise, organisations and businesses may be held liable for any sexual harassment committed by an employee or agent unless that can demonstrate that they have taken reasonable and proportionate measures.
KEY TAKEAWAYS
- With the aim of creating safer, more inclusive, and respectful workplaces, new legislation has been introduced imposing organisations and businesses with a positive duty to ensure the prevention of sexual discrimination and harassment in workplaces.
- The ‘positive duty’ obligation applies to almost all organisations and businesses regardless of their size (including government agencies).
- From December 2023, the Australia Human Rights Commission (AHRC) now has the power to investigate and enforce compliance with the positive duty obligation and may issue a compliance notice to employers for non-compliance.
- When determining if the positive duty obligation has been met, the AHRC will consider factors such as the size, nature and circumstances of the business, resources of the organisation or business and any other relevant matters.
- The AHRC has issued Guidelines outlining the key standards and guiding principles to assist organisations and businesses to comply with their positive duty obligation.
- The Fair Work Act 2009 (Cth) now adopts similar provisions to the SDA to make an employer vicariously liable for unlawful sexual harassment perpetrated by its employees or agents, if it was done ‘in connection with’ their employment or their duties as agent.
WHAT IS THE POSITIVE DUTY
Under the Sex Discrimination Act, the ‘positive duty’ requires an employer or person conducting a business or undertaking to take reasonable and proportionate measures to eliminate, so far as possible:
- Sex discrimination;
- Sexual and sex-based harassment in connection with work;
- Conduct creating a workplace environment that is hostile on the grounds of sex; and
- Related acts of victimisations.
The AHRC now has the power to also investigate and enforce compliance with the positive duty and issue non-compliance notices (which can be enforced by a court), for non-compliance.
WHAT ARE THE AHRC GUIDELINES
Understandably, many organisations and businesses have sought answers on what the ‘positive duty’ looks like in practice. The AHRC has issued Guidelines outlining the key standards and guiding principles to assist organisations to comply with their positive duty.
In summary, the 7 standards are as follows:
- Leadership: Senior leaders must understand their obligations under the Sex Discrimination Act and stay up to date with knowledge about relevant unlawful conduct
- Culture: Organisations and businesses must foster a safe, respectful, inclusive, and diverse culture as this standard empowers workers to report unlawful conduct, minimise harm and hold those accountable for their actions
- Knowledge: Organisations and businesses must develop, implement, and communicate a policy regarding unlawful conduct and respectful behaviour, and educate their workers on engaging in safe, inclusive, and respectful behaviour
- Risk management: Organisations and businesses should acknowledge that relevant unlawful conduct poses a risk to the equality, health and safety of their workers and adopt a ‘risk-based approach’ in their responses to such risks
- Support: Organisations and businesses must provide support to victims or witnesses of relevant unlawful conduct and ensure that workers are informed about the available support and how to access it
- Reporting and response: Organisations and businesses must ensure there are various appropriate options for reporting and responding to relevant unlawful conduct and regularly communicate these options to their workers
- Monitoring, evaluation and transparency: Organisations and businesses must regularly collect data that depicts the nature and extent of unlawful conduct in their workplace to improve their culture and inform their prevention and response measures
The full Guidelines set out practical examples of how organisations and businesses can meet each of the 7 standards. It is not necessary to implement all the examples – those which are ‘reasonable and proportionate’ measures in the circumstances will be enough. However, it is certainly beneficial as a safeguard to implement as many as possible.
LIABILITY OF EMPLOYERS
Under both the Sex Discrimination Act 1984 (Cth) and Fair Work Act 2009 (Cth), an employer will be held vicariously liable for unlawful sexual harassment perpetrated by its employees or agents if the sexual harassment was done ‘in connection with’ their employment or their duties as agent. This means that an aggrieved person can seek a remedy against an employer in addition to, or instead of, the perpetrator of the sexual harassment. The addition of this to Fair Work Act is a significant amendment.
However, an employer will not be vicariously liable if they took all reasonable steps to prevent the employee or agent from doing acts that contravene the prohibition on sexual harassment in connection with work. The onus will be completely on the employer to prove this.
NECESSARY ACTION
It is crucial for all organisations and business to review their current policies and practices relating to harassment so that they are being proactive, rather than reactive. Otherwise, there may be severe consequences.
To discuss how we can assist you to comply with the new ‘positive duty’, including reviewing your current policies and procedures, please contact us on the details provided below.
