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Enforcement powers in relation to positive duty on organisations to eliminate workplace sexual harassment to commence soon

Libby Pallot, Walter MacCallum, Anthony Massaro, Rima Newman, Ben Tallboys, Mandi Xu, Abbey Burns, Kelly Ralph, Ashleigh Warren, Morgan Smithe, Shi Jing Wong, Harrison Gray & Emily Tang

From 12 December 2023, the Australian Human Rights Commission will have the power to investigate and enforce compliance with the new positive duty on employers and ‘persons conducting a business or undertaking’ to eliminate unlawful sex based conduct including sexual harassment and sex discrimination in the workplace. This change ends the grace period for organisations to prepare and implement measures to ensure compliance with this positive duty. 

New positive duty

The positive duty came into operation under the federal Sex Discrimination Act 1984 (Cth) in December 2022 and requires employers to take all reasonable steps to eliminate, so far as is reasonably practicable, the following behaviours from the workplace:

  • sexual harassment;
  • harassment on the ground of sex;
  • discrimination on the ground of sex;
  • creating a hostile work environment on the ground of sex; and
  • related acts of victimisation.

In this alert, this conduct is collectively referred to as Prohibited Behaviours.

Legislating a positive duty to eliminate Prohibited Behaviours was one of the key recommendations of the Commission’s Respect@Work report. The report was commissioned by the Federal Government to explore ways to reduce sexual harassment in the workplace, following the publication of surveys conducted by the Commission which revealed that as many as one in three women reported experiencing sexual harassment in the workplace in the previous five years.

A key finding from the Respect@Work report was that employers were too reactive, rather than proactive, when it came to sexual harassment and related behaviours. It was observed that employers placed inordinate focus on having a grievance procedure and taking disciplinary action where allegations were proven, without considering measures to prevent such conduct occurring in the first place.

The new positive duty seeks to address this by requiring employers to take preventative action, for example through implementing policies (including protecting workers from exposure to the Prohibited Behaviours by visitors to their workplace), conducting regular training, and performing periodic risk assessments. The Sex Discrimination Act requires that employers take these steps (which are only a starting point) to eliminate Prohibited Behaviours in the workplace so far as is practicable.

The Commission has recently published guidance material to assist organisations to comply with the positive duty (see here). These guidelines are intended to help organisations understand the positive duty and to outline possible actions which can be taken to satisfy their legal obligation. The guidelines are centred around seven standards: leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency.

Based on these seven standards, a multi-faceted approach to eliminating Prohibited Behaviours in the workplace is required, however there is no “one size fits all” approach. Each organisation must consider what measures it can practicably implement, having regard to the size and nature of its business and the resources available. A large organisation with significant resources will likely be expected to take more steps than a small business. An example which the Commission uses in the guidance material is that a small business might have informal feedback discussions with staff about Prohibited Behaviours, where a larger organisation might have a formal engagement survey. Certain cost-effective measures, such as ensuring that your senior employees are leading by example and developing policies, which identify and condemn Prohibited Behaviours to set behavioural expectations and workplace culture can be implemented by organisations of any size.

Investigation and enforcement powers

The 12 month grace period for organisations to prepare and implement measures to comply with the positive duty will soon come to an end. From 12 December 2023, the Commission will have the power to:

  • conduct inquiries into compliance with the positive duty;
  • compel the production of documents and to examine witnesses;
  • issue a compliance notice specifying the actions that an organisation must take, or refrain from taking, to address any non-compliance;
  • apply to the federal courts for an order to direct the organisation to comply with the compliance notice; and
  • enter into enforceable undertakings with an organisation under which the organisation agrees to do, or refrain from doing, certain actions.

The organisation will have an opportunity to make submissions to the Commission in relation to their suspected failure to comply with the positive duty. A review of a decision to issue a compliance notice can also be requested.

Breach of the positive duty does not attract a civil penalty, however the federal courts have broad powers to make any appropriate orders if satisfied that an organisation is not complying with a compliance notice issued by the Commission. Organisations should also be mindful of reputational risks of having compliance action taken against them, and the potential impact on retention and recruitment.

It is not clear how vigorously the Commission will enforce compliance with the positive duty, and this may not be known until we have an example of the Commission taking enforcement action under these new powers. The new Sex Discrimination Commissioner, Anna Cody, has announced that particular industries, including the mining, retail and legal industries, will be subject to increased scrutiny. We anticipate that the Commission may change its focus industries from time to time depending on the prevalence of Prohibited Behaviours in particular sectors.

Regardless of the industry your business or organisation operates in, a clear and comprehensive plan for addressing the positive duty to eliminate Prohibited Behaviours ought to be in place prior to 12 December 2023.

How can we help

For assistance in identifying or implementing appropriate actions and strategies for your organisation or business to prevent Prohibited Behaviours and to ensure compliance with the new positive duty, contact Russell Kennedy's Workplace Relations, Employment and Safety team.

If you would like to stay up-to-date with Alerts and Insights from our Workplace Relations, Employment and Safety team, you can subscribe to our mailing list here.

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