The issue of sexual harassment has become increasingly topical. The critical question that is often asked – why is more not being done to prevent sexual harassment? In November 2022, the Federal Government passed legislation imposing a ‘Positive Duty’ on all Australian Employers. In this article we look at this change, what it means for your business.
The laws were changed following the Respect@Work: National Inquiry into Sexual Harassment in the Australian Workplaces Report which found that the then legal framework only required employers to act after they become aware of sexual harassment or they receive a complaint of sexual harassment.
Section 47C of the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) requires all employers to take reasonable and proportionate measures to eliminate as far as possible:
- sexual harassment,
- harassment on the grounds of sex,
- hostile workplace environments – that is a workplace that is hostile on the ground of sex, and
(Collectively referred to as the Positive Duty).
Small businesses are not exempt from complying with their Positive Duty.
Australian Human Rights Commission’s Powers
The Australian Human Rights Commission (AHRC) have a variety of regulatory powers to enforce compliance with the Positive Duty, these powers commenced on 12 December 2023.
The AHRC will have the power to:
- Conduct enquiries of an employer if there is a reasonable suspicion that non-compliance has occurred.
- Issue businesses with compliance notices;
- Commence proceedings in the Federal Court to enforce compliance;
- Enter into an enforceable undertaking with an employer under which the employer agrees to do, or refrain from doing, certain things;
- Commence an inquiry without the consent of an employer; and
- Compel production of documents and examine witnesses.
What are “Reasonable and Proportionate Measures”?
The AHRC has outlined the following seven ‘guiding principles’ it expects businesses to consider when seeking to meet their Positive Duty:
- Leadership
- Risk assessment and transparency
- Culture
- Knowledge
- Support
- Reporting
- Measuring
The AHRC has stated that:
“The Commission expects all organisations and businesses to have measures in place to address each of the seven Standards.”
In determining whether an employer has complied with their Positive Duty obligations, s.47C(6) of the Sex Discrimination Act requires the AHRC to take into account the following matters:
- Size, nature and circumstances of the business.
- Financial and non-financial resources of the business.
- Cost and practicability of measures to eliminate the behaviour.
- Any other matter that the AHRC considers relevant.
What happens you fail to comply with the Positive Duty
Employers who fail to comply with the Positive Duty under s.47C of the Sex Discrimination Act risk being ordered to pay civil penalties. Further, s.106 of the Sex Discrimination Act states that an Employer can be held vicariously liable for a contravention of s.47C of the Sex Discrimination Act, which means an employer could be held liable for an employee(s) sexually harassing another employee(s), unless they are able to demonstrate that they took reasonable and proportionate measures to eliminate the conduct.
Employers should also be mindful of the reputational cost of not complying with their Positive Duty, and possible increases in insurance costs. Another incentive for employers complying with their Positive Duty is the likely staff retention of ensuring a workplace free of sexual harassment.
What should Employers do?
It is recommended that employers have a ‘Sexual Harassment Prevention and Response Policy’ (previously a ‘Sexual Harassment Response Policy’). Employers must ensure that their Sexual Harassment Policy is up-to-date, readily accessible and enforced.
Employers should also consider providing employees with training on appropriate workplace behaviour.
It is crucial that an employer’s Sexual Harassment Policy outlines the procedures/steps that will be taken if a complaint of sexual harassment is received.
If your workplace needs assistance with drafting or updating your workplace policies and ensuring you comply with your Positive Duty, please contact us, we would be happy to assist.
Written by Henry Coventry and Nicole Dunn
Disclaimer: This publication has been provided for general guidance only and does not constitute professional legal advice. You should obtain professional legal advice before acting on information contained in this article.