Positive Duty for Sexual Harassment

In brief - On 13 December 2022, the Government's Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 received Royal Assent, making a positive duty for employers to take steps to eliminate unlawful sex discrimination. We will have a look at what this means for employers.

It has nearly been a year since the Sex Discrimination Act 1984 (Cth) (SD Act) was amended. This amendment introduced a positive duty for employers and persons conducting a business or undertaking (PCBUs) to take positive steps to eliminate unlawful sex discrimination (including sexual and sex-based harassment, subjecting a person to a hostile workplace environment on the ground of sex and related victimisation).

What is a PCBU?

The term “person” is not defined in this context, but takes its meaning from the Acts Interpretation Act 1901 (Cth) at a Commonwealth level to include both individuals and bodies corporate.

The phrase “business or undertaking” is to be broadly construed and covers:

• employers;

• principal contractors;

• head contractors;

• franchisors; and

• the Crown.

A person conducts a business or undertaking regardless of whether the person conducts the business or undertaking alone or with others, and irrespective of whether or not the business or undertaking is conducted for profit or gain.

The PCBU is the business entity conducting the activities of the business or undertaking. It is not the individual employed by that entity to undertake certain tasks. They are workers and have their own duties at law.

What is a positive duty?

Section 47C of the SD Act states employers and PCBUs are required to take reasonable and proportionate measures to eliminate, as far as possible, the following conduct by themselves and their employees, workers or agents (towards each other and third parties):

• Unlawful sex discrimination in employment, against commission agents and contract workers, and in partnerships.

• Sexual harassment or harassment on the ground of sex that is unlawful in the workplace under section 28B.

• Subjecting another person to a hostile workplace environment on the ground of sex as is unlawful under section  28M.

• Acts of victimisation within the meaning of section 47A that relate to complaints, proceedings, assertions or allegations in relation to any of the above conduct (sections 47C(1), (2), (3)).

• Employers and PCBUs must also take positive steps to protect their employees and workers from similar conduct by any person, including  clients, suppliers, customers etc.(sections 47C(4) and 47C(5)).

What are “reasonable and proportionate measures”?

According to the Revised Explanatory Memorandum to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth) (Revised Explanatory Memorandum) at [79]–[81], employers and PCBUs need to “proactively consider their compliance with the positive duty and any measures that would be appropriate to achieve compliance for their organisation in their particular circumstances”. This could involve:

• Taking steps to identify and understand potential areas of non-compliance.

• Developing a strategy for meeting and maintaining compliance.

• Reviewing and improving compliance (at [83]).

Employers already had a responsibility to take “all reasonable steps” to prevent an employee from engaging in unlawful conduct to avoid vicarious liability under section 106 of the SDA. The positive duty is intended to align with this provision. The Revised Explanatory Memorandum said that the concept of “all reasonable steps” and related case law can be used as guidance when determining whether an organisation has taken “reasonable and proportionate measures” to eliminate certain conduct “as far as possible”.

How can an employer determine compliance with the positive duty?

When determining whether an employer or PCBU has complied with their positive duty, the following may be taken into account:

• The size, nature and circumstances of the business or undertaking;

• The employer or PCBU’s resources (financial or otherwise);

• The practicability and cost of measures to eliminate unlawful conduct; and

• Any other relevant matter (section 47C(6)).

Other relevant matters

This is a broad provision taking into account factors such as:

• the culture of the workplace;

• levels of employee supervision;

• working hours;

• geographic location; and/or

• implementation of the AHRC's guidance materials.

Victimisation

The amendments also extended the victimisation provisions of the SD Act to provide that unlawful victimisation under section 47A, and the offence of victimisation under section 94, include subjecting (or threatening to subject) another person to any detriment because they made (or are believed to have made or plan to make) an allegation in relation to the positive duty.

WHS Laws

The positive duty under the SD Act operates concurrently with the Model Work Health and Safety Act 2011. The Revised Explanatory Memorandum states  that the conduct required of a PCBU under the SD Act and WHS laws “is anticipated to be the same” (at [92]).