New positive duty to eliminate sexual harassment: Guidelines now published on “how to”

Late last year, the Sex Discrimination Act 1984 (Cth) (Act) was amended to impose a positive obligation to eliminate sexual harassment. Wondering how to comply? Well, the Australian Human Rights Commission (AHRC) has recently published Guidelines, numbering a whopping 112 pages, unpacking the “how”.

Recap on the positive duty

Section 47C of the Act requires an employer or a person conducting a business or undertaking (duty holder) to take “reasonable and proportionate measures” to eliminate, as far as possible:

• discrimination on the ground of sex in a work context
• sexual harassment in connection with work
• sex-based harassment
• conduct that subjects a person to a hostile workplace environment on the ground of sex
• related acts of victimisation

For more information about the positive duty, see our article on Respect@Work reforms: Are you ready?

Australian Human Rights Commission: new role as active watchdog

From 12 December 2023, the AHRC will have authority to enforce compliance with the positive duty and investigate organisations or businesses where it “reasonably suspects” non-compliance with the positive duty.

According to the Guidelines, “This suspicion might come from information or advice provided by other government agencies or regulators, impacted individuals, unions or worker representatives or from reports in the media”.

The AHRC can commence its inquiry without the consent of the relevant organisation and will have the power to:

• compel production of documents and examine witnesses
• issue compliance notices
• apply to the Federal Court for an order to direct compliance with a compliance notice
• enter into enforceable undertakings

How to comply with the positive duty

Check out the Guidelines.

While not legally binding, they “are authoritative and set out the steps that the AHRC expects organisations and businesses to take to comply with the positive duty” and made pursuant to section 48(1) of the Act.

The Guidelines are underpinned by seven Standards (above) and four Guiding Principles, which “are based on the evidence of what works and what is needed” following the Respect@Work Inquiry Report.  The Guiding Principles are:

• Consultation
• Gender equality
• Intersectionality
• Person-centred and trauma-informed

Examples of practical ways to achieve each Standard are clearly set out in the Guidelines.  Although the Guidelines acknowledge that there is no one size fits all approach, and what is reasonable and proportionate will vary on the size and type of organisation, the inclusion of practical tips will assist organisations to develop a tailored framework.

Suffice to say, implementing a policy and conducting training will not be enough. Risk identification and documenting measures will be key to demonstrating compliance.

How can we help?

For more information about how your organisation can implement strategies to fulfil its positive duty, please reach out to Amber Sharp.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.