Legal Insights

Respect @ Work: How to comply

By Catherine Dunlop & Orla McNulty

• 06 December 2023 • 7 min read
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As noted in our update last year outlining the changes to the legislation regarding sexual harassment, clients have a positive duty to prevent sexual harassment, discrimination and vicitmisation. From 12 December 2023, the Australian Human Rights Commission has the power to enforce compliance with this positive duty.

The ‘Positive Duty’ places a specific onus on employers to take reasonable and proportionate measures to eliminate unlawful sexual discrimination. It sits alongside the existing duties in relevant health and safety legislation to eliminate (or if not to reduce so far as reasonably practicable) these hazards, and the existing equivalent duty in the Victorian Equal Opportunity Act 2011 (see the relevant guidelines here).

The Australian Human Rights Commission has produced guidance to assist employers in complying with the duty to prevent the relevant unlawful conduct being:

  1. Workplace sexual harassment;
  2. Sex-based harassment;
  3. Sex discrimination;
  4. Hostile work environments; and
  5. Victimisation

Enforcement of the Positive Duty

The guidance is not legally binding. However, as with the equivalent position in Victoria, the Commission will use the guidance when assessing whether an employer has complied with the Duty. The Commission is able to:

  • conduct inquiries into compliance where it reasonably suspects an employer is not complying with the Duty and make recommendations to achieve compliance;
  • issue a compliance notice specifying actions an employer must take to address non-compliance;
  • apply to the federal courts for an order to direct compliance with a compliance notice; and
  • enter into enforceable undertakings with an employer requiring it to do (or not to do) certain things.

Guiding Principles and Seven Standards

The Commission has set out seven standards that it expects employers to meet in order to meet the employer’s Duty. The Guidance also provides four guiding principles to use when implementing the seven standards.

The diagram below outlines what the guiding principles and seven standards are, and gives examples of how an employer can address them.

Further examples can be found in the Guidance itself along with the other resources the Commission has provided here.

Guiding Principles

The Commission’s guidance contains four guiding principles to inform an employer’s approach. These are:

  • Consultation

    Employers already have obligations under relevant health and safety legislation (including psychosocial regulations) to consult with employees about the risks arising from unlawful conduct, and relevant control measures. The Commission also recommends that consultation involve understanding what employees feel is needed so that they feel respected at work. The Commission suggests that this will involve specific consultation with marginalised and underrepresented groups. These groups may not already be represented in a typical safety designated work group model.

  • Gender Equality

    Employers should ensure the actions taken to comply with the duty contribute to achieving gender equality. The Commission notes that this goes beyond equal treatment and involves a focus on equal outcomes to achieve substantive gender equality.

  • Intersectionality

    Employers must recognise that the risks and impacts of the conduct prohibited by the duty will be affected by systemic factors (including race, religion, gender, sexual orientation and disability). Employers should take an intersectional approach to implementing the duty that recognises that unsafe and disrespectful workplace behaviour may have an impact on different people. Practically this means that people with a combination of certain attributes, e.g. LGBTIA+ women, are more likely to be subject to sexual harassment, a hostile work environment or other unlawful conduct. Again, this may mean that some workers are not engaged with typical consultation models and may require a specific approach and specific team based control measures.

  • Person-centred & trauma-informed

    An employer must create processes to understand and meet the needs of individuals. This will involve building an understanding of trauma to avoid causing further harm, and where possible giving individuals a choice in how a complaint may be addressed. There can be limits on that choice, for example to address risk to others or to provide procedural fairness, but ideally your policies and procedures will provide sufficient flexibility to take a person-centred approach.

Seven Standards

While the seven standards issued by the Commission are similar to those promulgated by other regulators and will likely reflect arrangements already in place for employers with mature systems, it is important that employers and senior leaders review these in some detail to ensure there is compliance across the business or organisation. The Standards provide:

1. Leadership

Senior leaders are responsible for understanding their obligations and for ensuring appropriate measures to fulfil the Duty are in place.

Examples: Senior leaders should create a “prevention and response” plan setting out measures for comprehensive compliance with the Positive Duty, and regularly check whether those measures are implemented. They must ensure workers are consulted about whether the measures are effective

2. Culture

Employers must foster a culture that is safe, respectful and inclusive where diversity and gender equality are valued. This will encourage employees to report any unlawful conduct.

Examples: Employers must develop a diversity and inclusion strategy and assess performance targets. This involves reviewing the specific workforce(s) and developing a plan to identity and eliminate discriminatory practices. Employers must ensure that all employees understand and work to create a positive workplace culture in policies.

3. Knowledge

Employers should review existing policies addressing respectful behaviour and unlawful conduct to update those policies against the standards (and relevant psychosocial regulations and Codes of Practice). Employers must also continue to provide education to employees to support them in engaging in safe, respectful and inclusive behaviour.

Examples: Employers should ensure they have training programmes for employees on expected standards of behaviour, educating them on unlawful conduct and addressing the role employees play in preventing and responding to such Conduct. The lawful standards of behaviour must be considered as part of performance and promotion processes.

4. Risk management

Employers must take a risk-based approach to meeting the Duty. This means relevant behaviour must be seen as both equality risk and a health and safety risk.

Examples: Employers should create a risk management process to regularly seek out information on the risks relating to Unlawful Conduct, review action that is taken to prevent and respond to Unlawful Conduct and review trends, patterns and lessons learned.

5. Support

Employers must put in place appropriate support for employees who experience or witness unlawful conduct. Employees must be aware of and able to access available support.

Examples: This means ensuring external counselling and wellbeing support (e.g. an Employee Assistance Program) is available to employees. Taking a person-centred approach means that this support is targeted to the individual so managers who may be responding to reports are able to offer appropriate ways to support a person who has been subject to or witnessed unlawful conduct.

6. Reporting & response

Employers must develop and/or update their appropriate options for reporting and responding to unlawful conduct, so that both the responses and consequences are consistent and proportionate. Employees must be made aware of these options.

Examples: This may involve distributing information sheets or display posters setting out how to report concerns, providing multiple options for reporting concerns, and applying consequences consistently regardless of the seniority of a perpetrator.

7. Monitoring, evaluation & transparency

Employers must collect appropriate data to understand the nature and extent of the unlawful conduct in the workplace and then use that data to improve work culture and develop measures for preventing Unlawful Conduct.

Examples: Employers should review measures for eliminating unlawful conduct to ensure the measures remain effective and should be prepared to change policies and the prevention and response plan to reflect any changes necessary.

What next?

Employers are likely to see more enforcement action in this area, both from the Commission and from relevant health and safety regulators. There is also likely to continue to be high media interest in reports of workplace sexual harassment. 2024 may see the long-awaited restrictions on some aspects and types of non-disclosure agreements in various jurisdictions. The excellent Respect@Work platform continues to be a one stop shop for most developments in this area, with a range of useful resources and links to state and territory materials.

If you have any specific questions about how to comply with Respect@Work, please do reach out to a member of our Employment & Workplace Team.

Read more from Employment, Safety & People 2023 Year in Review

By Catherine Dunlop & Orla McNulty

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