December 4, 2023
Sex Based Harassment And Employer Positive Duty Guidelines
The Australian Human Rights Commission (AHRC) has recently published its guidelines to help employer and persons conducting a business or undertaking (PCBUs) comply with the new positive duty to eliminate sexual harassment and discrimination in the workplace, in effect since December 2022.
The goal of these changes is to help create safe, respectful, and inclusive workplaces for all. There is now a legal obligation placed on organisations and businesses to take proactive and preventative steps to stop unlawful conduct from occurring in the workplace or in connection to work.
The guidelines have been published ahead of, which Commencing on 12 December 2023 the AHRC will have new enforcement and investigative powers to investigate employers/PCBUs expected of non-compliance with the positive duty requirements (their duty to take ‘reasonable and proportionate measures’ to eliminate unlawful conduct).
The guidelines provide practical guidance to employers to eliminate workplace sex discrimination, provide information on how employers can satisfy their obligations and set out seven expectations of organisations and companies to satisfy the positive duty.
What is the Positive Duty?
The Positive Duty introduces a higher threshold which requires businesses and organisations to take reasonable and proportionate measures to eliminate, so far as possible, the following behaviour:
1 . sexual harassment;
2 . sex discrimination;
3 . sex-based harassment;
4 . conduct which creates a hostile workplace environment on the ground of sex; and
5 . related acts of victimisation which occur in connection with work,
together these behaviours are referred to as (“Unlawful Conduct”). The Positive Duty does not only apply to Unlawful Conduct which occurs in the workplace or during working hours. Rather, it also extends to conduct which occurs at work-related events and/or outside of the physical workplace. As such, businesses and organisations should be aware of the broad scope of the Positive Duty and should take adequate steps to ensure that they take all reasonable and proportionate steps to discharge their Positive Duty.
To whom does the Positive Duty apply?
The Positive Duty applies to sole traders, self-employed individuals, small, medium and large businesses and the government.
How can organisations fulfil the Positive Duty?
The Guidelines reveal four “guiding principles” that set the tone to ensure compliance and seven Standards which explain the requirements associated with the Positive Duty and provide employers with practical way to satisfy their duty (“Standards”).
The Guiding Principles
The four Guiding Principles are as follows:
1 . Consultation: Maintaining consistent and genuine conversations with employees to better understand their needs and ensure marginalised or underrepresented groups feel heard.
2 . Gender Equality: Ensuring all genders have equal rights, rewards, opportunities and resources with a focus on the equal outcomes instead of equal treatment.
3 . Intersectionality: Recognising that Unlawful Conduct may impact people differently and addressing the unique risk factors of each employee.
4 . Person-centred & trauma-informed: Creating systems that meet individual needs and encouraging a better understanding of trauma and its effects.
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.
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.
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.
The Standards
The guidelines are based on seven standards which provide an ‘end-to-end’ framework that employers and PCBUs 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
Under the guidelines:
1 . Senior leaders 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, senior leaders should role model respectful behaviour and set the standard for inclusion and equality. It is useful to reinforce the message to senior leaders that, “The standard you walk past is the standard you accept.”
2 . Employers and PCBUs 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 prevent potential legal, reputational and financial risks that could otherwise harm the stability of the organisation.
3 . 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 workplaces.
4 . Employers and PCBUs should consult with all stakeholders about sexual harassment risks and hazards, and take a risk-based approach to prevent and respond to unlawful behaviours.
5 . Employers and PCBUs should provide workers who experience or witness unlawful behaviour in workplaces with appropriate support. That support should be accessible and readily available, whether or not the conduct has been reported.
6 . Workers should be provided with appropriate options for reporting unlawful behaviour, and those options should be regularly communicated. All reports should be responded to in a consistent and timely manner, and in a way which minimises harm to victims.
7 . Organisations are expected to be collecting relevant data in relation to unlawful behaviours in workplaces.
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