New ‘Positive Duty’ to Prevent Workplace Sexual Harassment

Recent changes to the Sex Discrimination Act 1984 (Cth) now impose a ‘positive duty’ on employers to take reasonable and proportionate measures to eliminate, so far as possible, sexual harassment and other related unlawful conduct in the workplace. Employers are required to take proactive steps to prevent the conduct, rather than taking reactive steps after it has already occurred. Here’s what you need to know.

What is the Positive Duty?

The ‘positive duty’ requires an employer or person conducting a business or undertaking to take ‘reasonable and proportionate’ measures to eliminate, as far as possible, these acts of unlawful conduct:

• sex discrimination
• sexual and sex-based harassment
• conduct conducive to a hostile work environment on the grounds of sex
• related acts of victimisation.

Work Health and Safety laws have required employers to provide a safe workplace for many years, which means identifying reasonably foreseeable hazards, assessing their risk of harm, and implementing control measures to eliminate or minimise the risk of harm from those hazards. The changes to the Sex Discrimination Act apply the same approach to preventing harassment. Employers are now expected to:

• identify situations or circumstances in their work operations which carry the risk of sexual harassment, sex-based harassment, hostile environment on the grounds of sex, and related acts of victimisation
• assess their risk of harm
• implement “reasonable and proportionate” measures to eliminate or minimise that risk.

This goes much further than the earlier expectations under the Sex Discrimination Act where preventative measures were usually limited to ensuring that relevant policies were in place and understood by employees, and procedures were in place to deal with allegations. The new positive duty now requires employers to be much more proactive. Employers must now identify circumstances which present a risk of unlawful conduct occurring and then implement “reasonable and proportionate” control measures tailored to their organisation.

What it means to take “reasonable and proportionate” steps will look different for each organisation, although there are some overarching requirements. The Australian Human Rights Commission (AHRC) has recently released Guidelines and a Quick Guide which set out the Guiding Principles and the seven Standards that the AHRC expects employers to meet to satisfy the positive duty. The Guiding Principles and the Standards are intended to help organisations determine practical actions that they can implement to comply with their positive duty, as well as being the standards against which the AHRC will assess compliance. We have summarised the key elements below.

Practical Steps Aged Care Providers Can Take

Identify Where Harassment or Unlawful Conduct May Occur

Employers must identify circumstances where there is a risk of harassment or inappropriate conduct occurring in their organisation, and this should be done in consultation with employees. Consultation is particularly important as it is an opportunity for issues to be raised and for participants to identify situations where unlawful conduct may occur, keeping in mind that different employees may have different perspectives.

It is also important to remember that sexual harassment is determined by what a reasonable person would anticipate that a particular individual may feel is offensive, humiliating, or intimidating conduct. The AHRC Guiding Principles require that solutions be “person-centred and trauma-informed”. An organisation must also identify circumstances specific to aged care/ home care and unique to their organisation.

Implement Measures to Prevent Harassment, Hostile Environment and Victimisation

Employers should:

• ensure that policies and Codes of Conduct are clear on what is appropriate behaviour, what constitutes inappropriate behaviour and the consequences of not complying with appropriate behavioural standards
• provide regular training on respectful and appropriate workplace behaviours and what to do if experiencing or witnessing inappropriate behaviour or unlawful conduct. Training should cover topics such as communication skills, empathy and cultural sensitivity. Additionally, training should focus on understanding the specific needs of elderly individuals, including those with cognitive impairments, to ensure respectful and appropriate care
• ensure that policies specifically address the unique vulnerabilities present in the aged care setting, emphasising the importance of treating residents and colleagues with compassion and dignity, while protecting employees
• implement policies and procedures, in consultation with employees, which will eliminate or minimise the risk of inappropriate conduct occurring in identified situations
• ensure that policies and procedures address resident to resident harassment and inappropriate conduct including monitoring and supervision, care planning, communication with family, and mediation and conflict resolution
• provide education and training to care workers about the development of diseases, including dementia, so that they can differentiate conduct in the context of disease as opposed to unlawful conduct. Ensure that employees know how to handle these situations and know the steps they need to take if such situations occur.

Addressing Reports of Inappropriate Conduct

The organisation:

• establish clear procedures and responsibilities for responding to reports of inappropriate conduct, and ensure that managers know what to do if they witness or receive a report of inappropriate conduct
• ensure processes to report inappropriate conduct are clear to employees and are easy to access
• provide support (such as counselling and employee assistance programs) to employees who experience or witness the unlawful conduct
• ensure that reports are taken seriously, addressed in a timely manner, procedural fairness is maintained, and individuals are held accountable for their behaviour in a transparent way
• ensure there is no victimisation of individuals involved in any allegations of harassment.

Show Leadership and Commitment to Eliminate Harassment

The AHRC Guidelines stress the role of an organisation’s senior team in preventing harassment by leading appropriate behaviours and establishing a respectful culture.

Leadership team:

• ensure that they and other team leaders understand their obligations under the new law, and show their commitment by consistently demonstrating appropriate behaviour
• communicate harassment prevention policies and procedures to residents and their families. This can include providing informational materials, hosting workshops or informational sessions, and actively seeking feedback to ensure continuous improvement in the quality of care and the safety of the environment
• monitor the work culture to ensure that it is safe and respectful and provides for gender equality
• collect appropriate data to understand the nature and extent of any inappropriate conduct that has occurred.

Keep Records

The AHRC will be investigating and reviewing compliance with the new duties. Organisations are expected to keep records of all related compliance activities, such as which risks were identified and how they were identified, the measures taken to control them, consultation undertaken, training, and responses to incidents.

What are the Consequences of Not Complying with the Positive Duty?

From 12 December 2023 the AHRC will have new powers to investigate and enforce an employer's positive duty to eliminate unlawful conduct in the workplace. These powers include the ability to conduct inquiries, issue compliance notices, seek court-ordered compliance, and enter into enforceable undertakings with organisations.

Consequences are not limited to breaches of the Sex Discrimination Act: if an employer fails to protect their employees from harassment or victimisation resulting in harm, this will also constitute a breach of their responsibilities under Work Health and Safety laws unless they can demonstrate that they took “reasonable and proportionate” steps to prevent the conduct from occurring.