Employers must take reasonable measures against harassment, discrimination
The Australian Human Rights Council (AHRC) has published its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth). These Guidelines are the AHRC’s comprehensive legal guidance on the duty, and the AHRC has indicated it will be using these guidelines to assess compliance.
As you may now be aware, employers and persons conducting a business or undertaking (PCBUs) now have a legal duty to “take reasonable and proportionate measures to eliminate relevant unlawful conduct as far as possible,” including sex discrimination, sexual harassment, sex-based harassment, hostile work environments on the ground of sex, and related victimisation.
The Guidelines provide a framework for positive duty compliance, using seven Standards and four Guiding Principles, as well as examples of how organisations can, practically, discharge the positive duty.
The Guiding Principles around sex discrimination legislation
In the Guidelines, the AHRC states that they expect the Guiding Principles will “help inform the decisions an organisation or business makes about what it needs to do in its own circumstances.” Despite the buzzwords that are used, the essence of the expected approach in applying the four principles is clearer with a short explanation, extracted below from the Guidelines:
- Consultation – this means talking to workers about what they need for a workplace to be (and feel) safe and respectful, and ensuring that the voices of people from marginalised and underrepresented groups are heard and considered.
- Gender equality – all actions to implement the positive duty should contribute to achieving gender equality – where people of all genders have equal rights, rewards, opportunities and resources.
- Intersectionality – an intersectional approach recognises that unsafe and disrespectful workplace behaviour may have a heightened impact on different people. Factors influencing a person’s experience of discrimination may include their sex or gender identity, their sexual orientation, whether they have a disability, whether they identify as Aboriginal and Torres Strait Islander, whether they are from culturally and linguistically diverse or culturally and racially marginalised communities, and their socio-economic class.
- Person-centred and trauma informed – person-centred and trauma-informed approaches are complementary ways to address unlawful conduct and ensure that workplace systems, policies and practices affirm the safety and dignity of the people who encounter them and support healing. Being person-centred and trauma-informed does not always mean doing what a person requests, but it does mean genuinely considering their wishes and the impact that decisions may have on them.
The Seven Standards for employer compliance
The seven Standards outline what the Commission expects organisations and businesses to do to satisfy the positive duty under the Sex Discrimination Act. The Standards address the following areas, which are expanded upon in the Guidelines, which include examples of practical ways to achieve the desired outcomes:
- Leadership
- Culture
- Knowledge
- Risk management
- Support
- Reporting and response
- Monitoring, evaluation and transparency
This AHRC guidance is timely as, from 12 December 2023, the AHRC will have statutory powers to undertake investigations and enforce the positive duty. We expect that these Guidelines will provide a useful yardstick against which to measure your organisation’s approach, and as you continue to evolve your response to positive duty compliance. Although these guidelines are obviously not tailored to your particular business context, they are authoritative as to the steps the AHRC expects business to be taking to satisfy their positive obligation to prevent sexual harassment and related conduct.
Anthony Wood is the senior partner and Lucy Boyd is an executive counsel in the Employment, Industrial Relations and Safety Group at Herbert Smith Freehills in Melbourne. Daniel Rabbat is a graduate at Herbert Smith Freehills in Melbourne.
