AHRC publishes Guidelines for new 'positive duty' to prevent conduct prohibited by the Sex Discrimination Act

In brief - From 12 December 2023, the Australian Human Rights Commission (AHRC) will be granted broad inquisitorial powers to enforce a new positive duty to eliminate unlawful sex discrimination and related conduct in the workplace. The new guidelines provide a framework for employers to ensure compliance. 

Last year's Anti-Discrimination and Human Rights Legislation (Respect at Work) Act introduced a positive obligation on employers to take "reasonable and proportionate measures to eliminate unlawful sex discrimination, including sexual harassment, sex-based harassment, hostile working environments, and victimisation as far as possible." 

Professor Rosalind Croucher said in a keynote speech to Australian Industry Group that this will shift the burden away from remedial action by individual complainants and towards employers taking proactive and preventative action to eliminate unlawful conduct.

This follows a National Survey last year that revealed 33% of people had experienced workplace sexual harassment in the previous 12 months. 

Ahead of the AHRC assuming broad enforcement powers from December this year, the Commission  has published its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (the Guidelines). 

The Guidelines are intended to help businesses and organisations understand their positive duty, the standards they are expected to meet, and the actions they can take to satisfy their legal obligations. 

Breaking down the positive duty

Elimination of unlawful sex discrimination and harassment is a localised task, with no 'one-size-fits-all' approach for all organisations. Professor Croucher identified that what constitutes "reasonable and proportionate measures" to eliminate such conduct is adaptable and may vary accordingly.

The AHRC asserts that its seven standards, illustrated by four guiding principles, are a framework to be adapted and altered by employers as necessary in their own circumstances. 

Standards

1. Leadership

Senior leaders must understand their obligations under the Sex Discrimination Act, implement appropriate measures for preventing and responding to relevant unlawful conduct, and be visible in their commitment to safe, respectful and inclusive workplaces.

2. Culture

Organisations and businesses must foster a culture that is safe, respectful and inclusive, and values diversity and gender equality.

3. Knowledge

Organisations and businesses must develop and implement a policy regarding respectful behaviour and unlawful conduct, and support workers to engage in safe, respectful and inclusive behaviour through education. 

4. Risk management

Organisations and businesses must recognise that relevant unlawful conduct is an equality risk and health and safety risk. They should adopt a risk-based approach to prevention and response.

5. Support

Organisations and businesses must ensure that appropriate support is available to workers who experience or witness relevant unlawful conduct, and that workers are informed about and have access to the available support.

6. Reporting and response

Organisations and businesses must ensure there are appropriate options for reporting and responding to relevant unlawful conduct. Responses must be consistent and timely.

7. Monitoring, evaluation and transparency

Organisations and businesses must collect appropriate data to understand the nature and extent of relevant unlawful conduct within their workforce, and regularly assess and improve the work culture in a transparent manner.

Guiding principles

1. Consultation

Employers must consult their employees in relation to:

(a) what they need to be (and feel) safe and respected; and
(b) the risks and mitigation options they need to eliminate unlawful conduct. 

This recognises that workers have an important perspective on what constitutes a safe work environment. Any strategy should incorporate the voices of people from marginalised and underrepresented groups within the workplace. 

Desired Outcome: employers undertake effective consultation, becoming more informed about what issues are most important to their employees and what initiatives/actions could reduce risk.

2. Gender Equality

Gender equality ensures that equal rights, rewards, opportunities and resources are afforded regardless of sex. All actions that organisations and businesses undertake should contribute to achieving gender equality.

Desired outcome: organisations achieve substantive gender equality, meaning they take action beyond 'equal treatment' to achieve equal outcomes.

3. Intersectionality

Intersectionality recognises that people's lives are shaped by their identities, relationships and social factors. These combine to create intersecting forms of privilege and oppression depending on the existing power structures within society and within an organisation or business.

Organisations and businesses must understand intersectionality in order to understand and recognise:

• how a person's experience can be compounded by other forms of inequality they face;

• that unsafe and disrespectful behaviour can have a heightened impact on different people; and

• that experiences of discrimination, harassment and victimisation are increased by overlapping structural inequalities.

Desired outcome: organisations are able to identify and address the unique risk factors of individuals and their intersecting disadvantages.

4. Person-centred & trauma-informed

Person-centred and trauma-informed approaches are complementary ways to address unlawful conduct and meet people's needs in the workplace.

• Person-centred approaches focus on making systems and processes understand and meet the needs of individuals. 

• Trauma-informed approaches build in an understanding of trauma and how it affects people, and prioritises safety, choice and empowerment. 

Desired Outcome: Adopting these approaches does not mean doing what a person requests, but it does mean genuinely considering their wishes and the impact that decisions may have on them.

Tips for employers

With the AHRC's expanded powers coming into force later this year, employers should understand new requirements and the AHRC's guidance for compliance.

Chapter 6 of the Guidelines provides 60 pages of practical examples of ways that employers can implement the Standards depending on varying unique factors, like business size and composition. These are a useful starting point for employers to review.

At a minimum, employers' should seek to take steps before December 12 to:

• Review and assess systems to identify deficiencies under the Sex Discrimination Act;

• Update policies, procedures, training and work health and safety practices to reduce the likelihood of unlawful conduct occurring;

• Provide employees and managers with support so that they can address unlawful conduct if it occurs (including tailored training for different sections of your workforce);

• Educate your officers and Board on the implications of claims and improve reporting processes to Boards.

• Introduce or assess existing accessible reporting mechanisms for staff to report instances of relevant unlawful conduct; and

• Ensure that systems are in place for reports to be taken seriously, investigated and addressed in a timely manner.