Effective from 12 December 2023, the Australian Human Rights Commission (AHRC) will have the power to investigate whether employers are meeting their new positive duty obligations and to enforce compliance.
These are new and significant powers.
What is the positive duty?
The Sex Discrimination Act was amended in 2022 to introduce a positive obligation on employers to take reasonable and proportionate measures to eliminate, as far as possible, the following unlawful conduct from occurring in the context of work:
- sexual harassment
- sex based discrimination
- sex based harassment
- a workplace environment that is hostile on the grounds of sex
- related acts of victimisation
AHRC Guidelines to implement the Positive Duty
To help organisations meet the positive duty, AHRC has published Guidelines for Complying with the Positive Duty. These Guidelines will be used by AHRC to consider whether organisations are doing enough to prevent and eliminate sexual harassment and other unlawful conduct.
The Seven Standards
The Guidelines are built around seven standards which are based on research about the causes of relevant unlawful conduct and what is required to prevent it from happening. Implemented together, the seven standards are designed to provide an end-to-end framework for prevention and response.
Four Guiding Principles
These seven standards are underpinned by four guiding principles: Consultation; Gender Equality; Intersectionality; Person-centred & trauma-informed.
The positive duty requires employers implement “reasonable and proportionate measures” to eliminate the relevant unlawful conduct. The AHRC expects that every organisation will have measures in place based on the seven standards and underpinned by the four Guiding Principles, but what is a reasonable and proportionate measure will depend on the context of the organisation.
What you should be doing now
While there is no one size fits all approach to implementing the positive duty, some practical steps all organisations should be taking now include:
- Treat sexual harassment and related unlawful conduct as a health & safety risk with the same rigour as other workplace hazards. This will require collection of data in a systemised way to provide insights and a commitment to turn those insights into action.
- Consult with staff to understand their experiences and perceptions of risks of relevant unlawful conduct in the context of work.
- Develop and implement a prevention and response plan that is based on the seven standards, underpinned by the four guiding principles.
- Communicate senior leadership commitment to creating a safe, respectful and inclusive workplace.
- Train Boards and Senior Leaders on the drivers of harassment and discrimination, and their obligations under the positive duty, and staff on expected standards of behaviour, rights and responsibilities.
- Implement a standalone sexual harassment policy that sets clear expectations for behaviours and how reports will be handled.
- Implement an external speak up channel or other systems to enable confidential reporting of issues outside of line management. Anonymous reporting options should also be provided.
- Develop report handling and response practices that are person-centred and trauma informed.
To learn more about how Your Call and Rely can help your organisation implement the positive duty, create safe reporting frameworks and obtain insights into cultural risk factors, download our Cut It Out brochure, or make an appointment to speak with our team.