What businesses need to know about the new ‘positive duty’ guidelines

What businesses need to know about the new ‘positive duty’ guidelines

The Australian Human Rights Commission (AHRC) recently published guidelines to help businesses comply with their new positive duty to eliminate sexual harassment and discrimination in the workplace.

The guidelines provide practical guidance for employers to eliminate workplace sexual harassment and discrimination and information on how employers can meet their obligations by setting out expectations to satisfy the positive duty.

Unlawful behaviours covered by the positive duty

There are a number of unlawful behaviours covered by the positive duty. These are summarised below:

Sex discrimination

Treating someone less favourably because of their sex or where an unreasonable condition, requirement or practice appears to treat everyone the same but in fact disadvantages people of a particular sex.

For example, offering men and women different pay or benefits for doing the same job.

Sexual harassment

Unwelcome behaviour of a sexual nature, in circumstances where a reasonable person would anticipate that the person who is harassed might feel offended, humiliated or intimidated by the behaviour.

For example, any unwelcome touching or staring, or repeated or inappropriate requests to go on dates.

Sex-based harassment

Unwelcome behaviour of a demeaning nature that happens because of a person's sex, in circumstances where a reasonable person would anticipate that the person who is harassed might feel offended, humiliated or intimidated by the behaviour.

‘Demeaning’ means disrespectful or degrading, for example, making inappropriate comments or jokes based on a person’s sex.

Hostile workplace environment on the ground of sex

A workplace environment is hostile if a person behaves in a way that a reasonable person would expect might be offensive, intimidating or humiliating to someone because of their sex. Behaviour that can contribute to hostile work environments includes:

• displaying pornographic or sexually explicit posters, photos or images
• behaviour involving gendered stereotypes, such as making women clean the office

Victimisation

Treating or threatening to treat someone badly or unfairly because they report unlawful behaviours, or exercise their rights under the law, or help someone else to do so.

It also includes instances where a person is treated poorly because they are intending to exercise their rights or are believed to have exercised their rights even if they haven’t. For example:

• demoting, reducing hours or shifts, excluding or threatening a person because they reported unlawful behaviour.
• intimidating a worker to stop them from reporting unlawful behaviour.

The framework

The guidelines are based on seven standards which provide a framework that employers can use to tailor their approach to preventing unlawful behaviours. These are:

1. Leadership
2. Culture
3. Knowledge
4. Risk management
5. Support
6. Reporting and response
7. Monitoring, evaluation and transparency.

Leading by example

Managers should understand the positive duty and know specifically what conduct is unlawful. They are responsible for ensuring appropriate measures are taken, updated, reviewed and communicated to workers.

Importantly, managers should display respectful behaviour and set the standard for inclusion and equality. The message to managers is, “The standard you walk past is the standard you accept.” In other words, managers should ensure their own behaviour is respectful and act as a role model for their staff.

Create a safe culture

Employers should create a safe, respectful and inclusive culture and workers should be encouraged to report any unlawful behaviour. A culture that encourages reporting of unlawful behaviour helps to prevent potential legal, reputational and financial risks.

Educate and train workers

Employers are expected to establish a policy in relation to respectful behaviour. They should educate and train their workers on expected behaviour standards, how to identify unlawful behaviour and relevant consequences, and their rights and responsibilities in the workplace.

Identify risks and hazards

Employers should consult with all employees about sexual harassment risks and hazards and take a risk-based approach to prevent and respond to unlawful behaviours.

Under work health and safety legislation, employers are required to eliminate or minimise risks to psychological health and safety. This includes sexual harassment.

Provide appropriate support

Workers who experience or witness unlawful behaviour in the workplace should be provided with appropriate support. That support should be accessible and readily available whether or not the conduct has been reported.

Options for reporting

Workers should have appropriate options for reporting unlawful behaviour, and these options should be regularly communicated. All reports should be responded to in a consistent and timely manner and in a way that minimises harm to victims.

Collecting data

Businesses will be expected to collect relevant data and information in relation to unlawful behaviours in workplaces. The data should be used to continually improve the workplace culture and build further precautions to prevent unlawful behaviours. It is recommended that employers are transparent with their workers about any steps taken to address incidents and unlawful behaviours.

What should employers do to meet their positive duty?

Some recommendations include:

• ensuring that business owners and managers are informed and understand the positive duty – this can be done by having sexual harassment and positive duty compliance as an agenda item at management meetings.
• regularly consulting and engaging with workers to discuss measures to eliminate sexual harassment risks and hazards.
• identify and assess situations that may result in a sexual harassment incident. This involves taking a work health and safety approach to sexual harassment and conducting regular risk assessments.

More information

The AHRC have produced a resource for small businesses on the positive duty.