Legal Insights

From Reactive to Proactive: Actionable steps to achieve compliance with the Positive Duty

By Catherine Dunlop, Bruce Heddle, Amber Davis

• 07 May 2024 • 8 min read

Following recent changes to legislation arising from the Respect@Work report, we share practical and actionable steps employers can take to achieve compliance with the new Positive Duty.

The findings of the recent Respect@Work: Sexual Harassment National Inquiry Report (2020) delivered by the then Sex Discrimination Commissioner Kate Jenkins show that, despite shifts in societal attitudes, increased education, and worldwide calls to action such as the Me Too movement, sexual harassment is still incredibly prevalent in workplaces across Australia.

This provides a particular challenge to employers, who now have a positive duty to take reasonable and proportionate measures to eliminate unlawful sexual discrimination (the Positive Duty). Since 12 December 2023, the Australian Human Rights Commission has had the power to enforce compliance with this positive duty.

Achieving compliance will require a proactive, creative and curious approach from leaders to ensure that plans to prevent sexual discrimination are tailor-made to the risk profile of their organisation. Employers willing to undertake significant consultation with its workforce on these issues will be best placed to deliver positive change.

What conduct is covered?

Employers now have a positive duty to eliminate, as far as possible, the following unlawful conduct from occurring:

sexual harassment in connection with work;
sex-based harassment in connection with work;
discrimination on the grounds of sex in a work context;
conduct creating a workplace environment that is hostile on the grounds of sex; and
related acts of victimisation.

Whose conduct is covered?

The positive duty requires an employer to take steps to eliminate unlawful conduct being engaged by:

themselves;
their employees, workers and agents; and
in some circumstances, by third parties (such as customers, clients, patients and members of the public) towards employees and workers.

What is required of employers?

Employers will need to be able to show that their organisations have taken reasonable steps to meet the positive duty. Importantly, there is no one-size-fits-all template that will demonstrate compliance. High-risk workplaces (e.g., those with a greater proportion of male employees to female employees (noting that sexual harassment is typically, although not always, a gendered issue), employees working in remote locations, or hierarchical workplaces) will require a different approach to lower risk workplaces.

The Australian Human Rights Commission (AHRC) has set out seven standards that it expects employers to meet in order to satisfy the positive duty. It has also issued four guiding principles to use when implementing the seven standards.

Please refer to our previous article for a deep dive on these.

Respect @ Work: How to comply

In practice, we see that there are several key components that will determine the effectiveness of an employer’s approach to complying with the positive duty.

Leadership and culture

We know that leaders play an important role in modelling the behaviour they wish to see in the workplace. 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. If leaders are not ‘curious’ about the particular vulnerabilities of their own workplace, the accuracy and effectiveness of their prevention planning will be lacking.

Knowledge

The latest AHRC national survey found that 33% of workers said that they had experienced workplace sexual harassment in the previous three years. What we also know is that sexual harassment is severely underreported, with the same survey recording that only 17% of people made a formal complaint. For employers, this means that they cannot presume that sexual harassment is not occurring in their workplace, simply because they do not know of any complaints.

Employers need to creatively consider what they are doing to identify the risks across their organisation, including:

how they might monitor use of technology to understand to what extent it is being used to engage in sexual harassment;
whether anonymous engagement surveys regarding sexual harassment in the workplace reflect the known complaints made to the organisation;
whether there is a particularly vulnerable subset of employees (for example, intersectionality with other identifiers such as sexual orientation, ethnicity, or visa status).

In all these cases, an employer’s knowledge about the workplace and the risks will be best informed by consultation with its workforce, not only to understand the issues, but also to consider the appropriate solutions.

Employers should also question whether they are implementing ‘best practice’ standards in this space, and if not, inform themselves of those standards. The Respect@Work platform provides a handy suite of resources for organisations, including links to state and territory materials and relevant safety regulator best practice guidelines.

A risk based approach

Employers should bear in mind that a failure to comply with the positive duty may also be seen as a breach of the relevant and applicable WHS/OHS legislation. The same applies to consultation, which is a positive duty under WHS/OHS legislation for issues that relate to the health and safety of workers.

We therefore encourage employers to think broadly about the positive duty and approach any organisational change in the same way as other key safety risks in your organisation, i.e.:

apply a safety lens to your assessment of your workplace – who is most at risk, and what are the immediate steps that can be taken to eliminate that risk?
consult, consult, consult – start by asking:
- What is the risk that these behaviours are occurring, and what is the specific behaviour that could be concerning?
- What is the risk that the behaviours are occurring, but not being reported?
- What is the risk that no action is currently being taken in response to these behaviours, and what are the factors that are contributing to that?
adopt the same ‘hierarchy of controls’ approach found in the psychosocial codes of practice (see pages 14-15 of the Safe Work Australia model code, pages 21-23 of the NSW Code of Practice: Managing psychosocial hazards at work or the proposed Victorian psychosocial regulations for more) – that is, consider factors such as job design and job crafting, culture and systems, instead of simply relying on policies, training and education;
know that meaningful change will be planned and systemic.

How will enforcement occur?

The AHRC is now empowered to:

commence an inquiry into compliance with the duty;
issue a compliance notice specifying action that a business must take, or refrain from taking;
apply to the federal courts for an order to direct compliance with a compliance notice; and
enter into enforceable undertakings.

The AHRC also has investigative powers to compel the production of information and documents and examine witnesses.

How should employers approach confidentiality orders or ‘NDAs’?

The discussion about the obligations of employers to prevent sexual harassment has also raised questions about the appropriateness of NDAs. Such agreements have frequently been relied on when settling workplace sexual harassment matters, barring those involved in the matter from discussing both the incident and the details of the settlement, including the settlement amount. Legally, the terms of an NDA can be negotiated and must be agreed upon by all involved parties. However, the reality of an NDA is that it harnesses unequal bargaining power and is used as a tool to effectively stop victims from speaking out, which fosters a culture of concealment and silence and enables employers to discreetly retain sexual harassers. Reforms have been proposed in this area, similar to those adopted overseas, but have not yet been implemented.

NDAs should be:

clear and not reliant on complex legal concepts;
utilised on a case by case basis;
fair; and
not agreed upon until the employee has an opportunity to obtain independent legal advice.

Employers should consult the useful AHRC guidelines before using an NDA.

What next?

If you haven’t already, take a look at the guidance provided by the AHRC, and start the process by consulting with your workplace.

Remember, the effectiveness of your prevention plan will rely upon the sophistication and accuracy of the information you have about the risks in your workplace.