NSW Government agencies need to be aware of the recent Guidelines for Complying with the Positive Duty (Guidelines) issued by the Australian Human Rights Commission (AHRC) regarding the positive duty to eliminate sexual harassment and other unlawful conduct under the Sex Discrimination Act 1984 (Cth).
What is the positive duty?
The Sex Discrimination Act 1984 (Cth) (Act) enshrines a positive duty on organisations, including government agencies, to prevent sexual harassment from occurring in the workplace.
In short, the 'positive duty' requires an employer or person undertaking a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible:
- sex discrimination
- sexual and sex-based harassment
- conduct conducive to a hostile work environment on the grounds of sex
- related acts of victimisation.
(collectively, relevant unlawful conduct)
From December 2023, the AHRC will have the power to investigate and enforce compliance with the positive duty and may issue a compliance notice, which could be enforced by a court order, for non-compliance.
The Guidelines outline the key standards and guiding principles to assist organisations to comply with their positive duty.
The NSW Government has recently committed itself to eliminating sexual harassment, bullying and discrimination in public sector workplaces. As such, government agencies may find these guidelines helpful as they develop processes and practices to respond to and seek to eliminate incidents of sexual harassment and other misconduct.
The AHRC standards
The Guidelines set out seven standards, providing organisations with a framework to structure their practices to comply with the positive duty.
The standards are:
- leadership: Senior leaders need to understand their obligations under the Act and stay up to date with knowledge about relevant unlawful conduct
- culture: Organisations must maintain a safe, respectful, inclusive, and diverse culture as this standard empowers workers to report unlawful conduct, improve accountability and minimise harm
- knowledge: Organisations must develop, implement, and communicate a policy regarding unlawful conduct and respectful behaviour, and educate their workers on engaging in safe, inclusive and respectful behaviour.
- risk management: Organisations should acknowledge that relevant unlawful conduct poses a risk to the equality, health and safety of their workers and adopt a 'risk-based approach' in their responses to these risks
- support: Organisations must provide support to victims or witnesses of relevant unlawful conduct and ensure that workers are informed about the support available
- reporting and response: Organisations must provide options for reporting and responding to relevant unlawful conduct and regularly communicate these options to their workers
- monitoring evaluation and transparency: Organisations must regularly collect data that depicts the nature and extent of unlawful conduct in their workplace to improve their culture and inform their prevention and response measures.
The guidelines provide practical examples of how organisations can meet each standard. Organisations are not expected to implement all examples and only need to enact measures that are 'reasonable and proportionate' in the circumstances.
The AHRC guiding principles
The Guidelines provide that for an organisation to implement the standards, they should adopt the following principles:
- consult with their workers about what they need for a safe and respectful workplace and discuss the available options to eliminate relevant unlawful conduct
- implement measures that advance gender equality
- adopt an 'intersectional' approach to the risks and impacts of relevant unlawful conduct
- be person-centred and trauma-informed in their policies, systems and practices.
Key questions in response to the Guidelines
The Guidelines provide a timely reminder for organisations to review, refine and implement their policies and processes to comply with their positive duty. Further, given the AHRC compliance and enforcement powers will shortly come into effect, there is an imminent need for organisations to ensure they have taken steps to comply with their positive duty.
A review process should include a consideration of the following key questions:
- is your current 'appropriate workplace behaviour policy' fit for purpose? Does the policy make clear the standard of behaviour required? Is support available to workers who experience inappropriate behaviour?
- do workers receive regular training on appropriate workplace behaviour?
- are your processes to report and investigate sexual harassment clear, easily accessed and understood?
- are senior leaders in the organisation aware of their obligations under the Act? Is there a communications channel where they can access up to date information?
- has a risk assessment on the likelihood of sexual harassment been carried out? Have relevant controls been implemented in response to the assessment?
- Does your workplace culture foster appropriate workplace behaviour? Is the culture safe, respectful, inclusive, and diverse?