LEGAL UPDATE

MORE THINGS TO DO BEFORE CHRISTMAS

Authors: Margaret Diamond and Zeb Holmes

The Australian Human Rights Commission’s Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report published in 2020 made several recommendations for improving the available mechanisms for addressing workplace sexual harassment.

One of the more controversial and innovative recommendations was a shift from the existing reactive complaints-based approach to one that requires positive actions from employers and focuses on prevention.

The Respect@Work Report concluded that the introduction of a positive duty in the Sex Discrimination Act 1984 (Cth) would move the emphasis from a complaints-based model to one where employers must continuously assess and evaluate whether they are meeting the requirements to eliminate sex discrimination and harassment in the workplace. This would provide employers with greater incentive to take proactive and preventative measures to comply with the duty and shift the focus away from individuals making complaints.

The Respect@Work Report recommended that the Sex Discrimination Act 1984 (Cth) be amended to introduce a positive duty on employers and that the Australian Human Rights Commission Act 1986 (Cth) be amended to give the Australian Human Rights Commission compliance powers regarding the positive duty.

These recommendations were implemented by the Commonwealth Parliament in the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth).

The positive duty can now be found in section 47C of the Sex Discrimination Act 1984 (Cth).

The positive duty is imposed not only on employers, but also on persons conducting a business or undertaking, to prevent:

• workplace sexual harassment;
• sex-based harassment;
• sex discrimination;
• hostile work environments; and
• victimisation.

The positive duty requires employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate these five forms of unlawful conduct as far as possible in their workplaces in order to achieve compliance with the Sex Discrimination Act 1984 (Cth).

Importantly, from 12 December 2023, the Australian Human Rights Commission will have the power to enforce compliance with this positive duty.

The delayed commencement of the Australian Human Rights Commission’s enforcement powers was intended to ensure that employers and persons conducting a business or undertaking had sufficient time to understand their obligations as a result of the new positive duty.

The Australian Human Rights Commission’s enforcement powers will include the ability to:

• conduct inquiries into a person’s compliance with the positive duty and provide recommendations to achieve compliance;
• give a compliance notice specifying the action that a person must take, or refrain from taking, to address their non-compliance;
• apply to the Federal Court for an order to direct compliance with the compliance notice; and
• enter into enforceable undertakings.

The Australian Human Rights Commission is able to initiate an inquiry into a person’s compliance with the positive duty if it “reasonably suspects” that a person is not complying. The Australian Human Rights Commission may form this view based on information or advice provided by other agencies or regulators, information disclosed by affected individuals or media reporting or other sources.

The Australian Human Rights Commission has now published guidelines for complying with the positive duty to help employers and business owners understand their responsibilities and the changes they may need to make to meet the new legal obligations.

The guidelines are divided into the “four guiding principles’’ and the “seven standards’’ that the Australian Human Rights Commission expects workplaces to meet in order to comply with their positive duty.

In terms of the four guiding principles, the Australian Human Rights Commission has emphasised that, to eliminate relevant unlawful conduct successfully, a workplace’s approach should:

• involve consultation, so that any actions taken are informed by those affected by the relevant unlawful conduct at work;
• advance gender equality in the workplace;
• acknowledge intersectionality, recognising that the risks and impacts of unlawful conduct are compounded by systemic issues of inequality; and
• be person-centred and trauma informed, ensuring that workplace systems, policies and practices support people’s safety and dignity and avoid causing further harm.

In terms of the seven standards, the Australian Human Rights Commission expects each workplace to take positive action to improve its leadership, workplace culture, knowledge, risk management, support systems, reporting and response practices, and monitoring, evaluation and transparency systems when it comes to the relevant unlawful conduct at work.

We recommend to clients that they further familiarise themselves with these guidelines and, if necessary, seek advice about how to ensure compliance with the new legal obligations before 12 December 2023. Please call our Harmers legal team on 61 2 9267 4322 if you require advice or assistance.

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