13 December 2023
In recent times sexual harassment and discrimination in the workplace has been quite topical globally with movements such as the #MeToo movement which has shone a light on issues that were and still are prevalent in many workplaces.
This is exemplified by the Australian Human Rights Commission’s (AHRC) Time for respect: Fifth national survey on sexual harassment in Australian workplaces (National Survey 2022) 11, which found that 33% of people reported having experienced workplace sexual harassment in the previous five years – representing 41% of women and 26% of men.
It is because of the publicity these issues have raised that there have been many legislative changes in relation to workplace sexual harassment and discrimination over the past 2 years.
Latest legislative changes to be aware of
Most recently, in December 2022, the positive duty statutory obligation was introduced into the Sex Discrimination Act 1984 (Cth) (SDA) when the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) was passed into law.
This positive duty imposes a legal obligation on a ‘person conducting a business or undertaking’ and ‘employer’s (organisations and businesses), to take proactive and meaningful action to prevent unlawful conduct from occurring in the workplace or in connection to work.
As of 12 December 2023, the AHRC has new powers under the SDA to investigate and enforce compliance with the positive duty. Under the SDA, organisation and businesses now have a positive duty to take reasonable and proportionate measures to eliminate discrimination by employees, agents and some third parties (such as customers, clients, suppliers, visitors and members of the public) on the grounds of:
- sex in a work context;
- sexual harassment in connection with work;
- sex-based harassment in connection with work;
- conduct creating a workplace environment that is hostile on the grounds of sex; and
- related acts of victimisation.
What this means for you
This means that all organisations and businesses in Australia, irrespective of their size or resources, are now required to undertake proactive and preventative action against the abovementioned conduct to ensure they meet the positive duty in the SDA.
Leaders or organisations and businesses will be pivotal in setting the standards and practices for preventing unlawful conduct while creating an environment where unlawful conduct is not tolerated, and the wellbeing of all employees is prioritised.
Consequences for non-compliance
The are a number of legal and other consequences of not complying with the new positive duty such as reputational damage and increased insurance costs, as well as:
- Employers may be held liable for any incidents of harassment or discrimination that occur in the workplace, which may result in financial penalties and damages awarded to affected employees.
- Penalties under the relevant Workplace Health and Safety Act:
- NSW – $185,926 for an individual and $1,860,843 for a corporation;
- QLD – $185,926 for an individual and $1,860,843 for a corporation;
- TAS – $150,000 for an individual and $1,500,000 for a corporation;
- ACT – $150,000 for an individual and $1,500,000 for a corporation; and
- WA – $170,000 for an individual and $1,800,000 for a corporation.
What can you do to comply
There are many actions you can take to ensure your organisation complies with this positive duty including but not limited to:
- Understand your legal obligations in relation to the new positive duty.
- Consult with your employees and identify what they need to make the workplace safe and respectful.
- Develop (or update) and communicate any policies or procedures regarding sexual harassment and discrimination, complaints handling and reporting (this is now mandatory), codes of conduct, induction manuals etc regarding unlawful conduct in the workplace.
- Update relevant templates and position descriptions to be gender inclusive and respectful.
- Provide regular training to all employees regarding sexual harassment and discrimination.
- Set expectations regarding standards of behaviour, conduct and any penalties attached to failure to adhere to the standards set.
- Update any workplace health and safety or general risk registers having regard to the new positive duty.
- Do not set and forget. Continue to monitor and evaluate actual or potential sexual harassment or discrimination within the business and use this information to proactively continue to improve processes and policies.
- Lead from the top! Have leaders express their commitment to eliminating unlawful conduct and why gender inclusivity and respect is so important and champion any changes and initiatives in this regard.
- Put up signage for third parties about behaviour expectations in relation to unlawful conduct.
- Document or minute any meeting or discussions held on the topic.
This summary is a guide only and is not legal advice. If you require assistance with updating your sexual harassment policy to align with the new Positive Duty Obligation, please contact us on 02 9021 9699.