Good leaders strive to promote a working environment that is positive and supportive for all employees, free from any form of discrimination, bullying or harassment. In instances of sexual harassment at work, the impact is costly for employers, both financially and culturally. It can lead to increased absenteeism, reduced productivity, poor employee morale and increased turnover, all of which put the business at significant risk.

The Respect at Work Bill commenced on 12 December 2022 and enacts new measures in an effort to eliminate discrimination, sexual harassment, and victimisation in the workplace. These new measures include a positive duty on employers to prevent workplace sexual harassment, prohibition on creation of hostile work environments, and expanded monitoring and enforcement powers for the Australian Human Rights Commission (AHRC).

What exactly is positive duty?

Employers now have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, and victimisation in the workplace as far as possible. This new requirement will apply to all employers, with no exclusions. However, what is considered reasonable and proportionate measures by an employer will vary depending on the business, and will be assessed on factors such as its nature, size, circumstances, resources available as well as the practicability and cost of the measures.

Why has positive duty been introduced?

At the Federal level, the Sex Discrimination Act does not impose a specific obligation on businesses to take proactive steps to prevent workplace sexual harassment. Instead, employers can be held legally responsible for acts of sexual harassment misconduct that occur at work or in connection with a person’s employment. Also known as vicarious liability, it only occurs after the sexual harassment has taken place and a complaint has been made.

The new positive duty under the Respect at Work Bill addresses this gap by shifting the burden from individuals having to make complaints to one where employers must continuously assess whether they are meeting the requirements to take proactive and preventative action.

Additionally, while Australia’s work health and safety (WHS) laws require employers to ensure the health and safety of employees as far as reasonably practicable, this duty is only enforceable by WHS regulators. A key benefit of a positive duty under the Sex Discrimination Act will be the AHRC’s ability to take a more holistic approach to sexual harassment investigations, in consideration of systems and drivers of sexual harassment present within the workplace culture.

How will the AHRC enforce positive duty?

The AHRC will be able to initiate an inquiry into an employer’s compliance with the positive duty if it reasonably suspects they are not complying. This can be information or advice disclosed by other agencies or regulators, individuals, unions or worker representatives, or even media reporting.

Under the new laws, the AHRC will be able to:

  • Conduct inquiries into an employer’s compliance with the positive duty and provide recommendations to achieve compliance
  • Issue a compliance notice specifying the action that must be taken, or refrained from, to address non-compliance
  • Apply to federal courts for an order to direct compliance with the compliance notice
  • Enforce compliance where employers remain non-compliant

Importantly, businesses will have 12 months before the AHRC’s new powers to monitor and assess compliance with the positive duty commence. This delayed commencement will ensure that employers have sufficient time to understand their obligations under the positive duty and implement changes, if necessary.

What does this mean for employers?

In anticipation of these changes, employers should move away from a reactive model, and towards a preventative model, and prepare to operate according to the positive duty to ensure that the workplace is free of all forms of discrimination, harassment, and victimisation.

Before the positive duty is implemented, employers should look to review internal practices by:

  • Ensuring all employees including executives, managers, and human resources understand what constitutes discrimination, harassment, and victimisation
  • Developing and implementing updated policies and procedures that include a prevention plan
  • Conducting training and educational initiatives which communicate updated policies and procedures
  • Conducting regular risk assessments to identify the likelihood of discrimination and harassment occurring, and taking necessary steps to eliminate or control any risk factors
  • Developing a complaints procedure that ensures complaints are dealt with promptly and efficiently
  • Regularly reviewing the workplace culture, policies and procedures and making proactive changes where required

If you need assistance preparing your business for the changes, get in touch with our team – we can help! Find our articles helpful? Remember to follow us on Facebook, Instagram or LinkedIn to keep up to date with our practical tips and information for business owners and managers.