'No wiggle room': How to comply with Australia's positive duty law

The introduction of Australia's new positive duty law makes it clear that there is "no wiggle room" for not prioritising sexual harassment, according to an expert.

Skye Charry, co-founder of S.A.C Consulting Australia, said sexual harassment prevention has not always been regarded as a high priority issue in businesses.

But the introduction of the positive duty in Australian law in 2022 changes things for businesses.

"This represents a significant adjustment for some," Charry told HRD. "The rationale has tended to be that 'We have a list of things as long as my arm to get through in a day - so people just need to toughen up and get on with it.'

"However, the new positive duty law makes it clear that there is no wiggle room for de-prioritising sexual harassment. All business leaders must understand their duty, their liability and ultimately, take action."

The positive duty imposes a legal obligation on businesses to take proactive and meaningful action to prevent sexual harassment and related harm at work.

"More particularly, the positive duty requires employers to take measures that are 'reasonable and proportionate' for their workplace," Charry said.

Compliance with 'positive duty'

However, given the uniqueness of each business, there is no "one-size-fits-all" approach when complying to the new positive duty obligation, according to Charry.

She noted that some important considerations include the size of a business, the type of work that is performed, and the relative resources that are available in taking this action.

"Employers are encouraged to start by actively listening to understand the experiences and needs of their employees in different parts of the organisation and to take those unique perspectives into account in designing a plan," she said.

Charry stressed that the plan needs to be aligned with the Australian Human Rights Commission's Guidelines for Complying with the Positive Duty by considering the seven key areas including:

• Leadership
• Culture
• Knowledge
• Risk Management
• Support
• Reporting and Response
• Evaluation, Measurement, and Transparency

"Each of these areas will have natural overlap with other elements," Charry said. "For example, in considering workplace culture, a business leader may realise that some targeted communication around language and tone is necessary. This might be in the form of training, which would fall under Knowledge."

Developing policy

The next step is to develop a policy that involves unpacking the definition of sexual harassment and other related harms at work, and affirming a zero-tolerance stance on them, according to Charry.

The policy should also provide a range of options for responding to sexual harassment, as well as set out processes for disclosing incidents and providing reassurance of confidentiality, timeliness, among others.

"After an employer has taken steps to review the cultural landscape by listening to people's perspectives from different parts of the business, it's important to then consider core messages - and the most effective ways of communicating them," Charry said.

There should also be "respect and empathy" for other team members in the course of such important conversation, she added.

Consequences for non-compliance

Being liable for sexual harassment have long been present in Australia even before the introduction of the positive duty, but only if it progressed all the way to the court for hearing.

But with the introduction of the positive duty, there is now more to it.

"The Australian Human Rights Commission now has the power to investigate how effectively businesses are taking their 'reasonable and proportionate measures' to eliminate sexual harassment and related harm," Charry explained.

The commission can also now take action to enforce positive duty through steps such as:

• Conducting enquiries into an organisation's compliance with the positive duty requirement
• Providing recommendations to the organisation to meet the requirement
• Issuing a compliance notice requiring the organisation to take immediate steps to remedy the issue
• Applying to the federal court to enforce compliance