Australia's federal anti-discrimination laws currently hold employers vicariously liable for unlawful acts of discrimination and harassment by their employees, unless the employer can show that it took all reasonable steps to prevent the act occurring.

It is generally accepted that the defence by employers that they took reasonable steps to prevent the conduct from occurring is established as long as they had implemented training and policies regarding discrimination and harassment, and took action when a complaint of discrimination or harassment was made.

However, there has now been a recent shift towards imposing a positive duty on employers to actively eliminate discrimination and harassment in the workplace, by creating an environment where it is unlikely to happen in the first place.

Northern Territory Proposes Positive Duty to Eliminate Discrimination, Harassment and Victimisation

The Northern Territory Government has proposed the inclusion of a positive duty to its state anti-discrimination legislation, that will require employers to "take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation to the greatest extent possible."

The proposed legislation provides a range of factors to be considered in determining whether a measure is "reasonable and proportionate", including the size and nature of the business, its resources and priorities and the practicability and cost of the measures.

Victoria's Positive Duty to Eliminate Discrimination, Harassment and Victimisation

This legislation proposed in the Northern Territory is similar to the anti-discrimination legislation that has been active in Victoria since 2010. It also imposes a positive duty on employers to eliminate discrimination, hasassment and victimisation, and provides a similar range of factors to be considered in determining whether a measure is "reasonable and proportionate".

The legislation in Victoria helpfully provides examples of how an employer can discharge its duty depending on the size of the employer.

A small not-for-profit community organisation is expected to take steps to ensure its staff are aware of the organisation's commitment to treating staff with dignity, fairness and respect and make a clear statement about how complaints from staff will be managed.

A large company is expected to undertake an assessment of its compliance with the anti-discrimination legislation, and develop a compliance strategy that includes regular monitoring and provides for continuous improvements of the strategy.

Nationwide Positive Duty to Prevent Sexual Harassment

The Federal Government has expressed its commitment to imposing a nationwide positive duty on employers to specifically prevent sexual harassment in the workplace via an amendment to the federal Sex Discrimination Act 1984 ("SD Act"). This was recommended in the Australian Human Rights Commission's ("AHRC") Respect@Work Report (read our article about the Respect@Work Report here).

The amendment will require all Australian employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. The SD Act will prescribe factors that must be considered when determining whether a measure is reasonable and proportionate, in line with those provided by the Northern Territory and Victoria.

The amendment will also grant the AHRC the function of assessing employers' compliance with their positive duty. This will include granting the AHRC power to undertake assessments of the extent to which an employer has complied with its duty and to issue compliance notices if necessary. It also gives the AHRC the power to enter into agreements or enforceable undertakings with the employer and apply to the Court for an order requiring their compliance with the duty.

Key Actions for Employers

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

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

  • ensuring all staff including the organisations leaders, managers, contact officers 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; and
  • regularly reviewing the workplace culture, policies and procedures and making proactive changes where required.