Respect@Work: New guidelines for positive duty compliance

What is the positive duty in the Sex Discrimination Act?

Australia must begin to actively prevent sex discrimination and sexual harassment in the workplace rather than respond reactively to incidents. A key amendment to the Respect at Work legislation was the introduction of a positive duty on organisations and businesses to take reasonable and proportionate measures to eliminate unlawful conduct, such as:

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

Every entity in Australia governed by the Sex Discrimination Act, from sole traders to large businesses and government entities, must adhere to the positive duty. The scope of positive duty is broad, ensuring coverage extends to their employees, workers, agents and third parties with whom employees come into contact in connection with their work. It even considers how third parties treat employees in a work context. 

While the Act is explicit in its requirements, it's also adaptable, understanding that businesses differ in size and nature. What is financially viable for a large company may be impractical and costly for small businesses to implement. 

Small businesses may be permitted fewer formal mechanisms for tackling workplace harassment and discrimination, such as using free resources and services and communicating policies and expectations regularly to employees. Large, well-resourced entities may require more sophisticated measures like HR analytics, anonymous employee surveys and whistleblowing software.

In determining what are "reasonable and proportionate" measures to eliminate unlawful conduct, the Commission considers various facets:

• the number of employees
• nature of the industry
• operational location (physical and online)
• risk factors present in the business or organisation.

What are the consequences of non-compliance with the positive duty in the Sex Discrimination Act?

The Sex Discrimination Act states that employers can be held accountable for any unlawful actions by their employees related to their work duties. This principle, termed 'vicarious liability', implies that if one employee behaves unlawfully towards another, the employer might be held legally responsible and face financial penalties. The determination of whether an employer took "all reasonable steps" to prevent such actions lies with the courts, not the Commission. However, adhering to the Commission's guidelines on satisfying the positive duty can assist employers in proving they aren't liable under this Act.

Beginning December 12, 2023, the Commission will have the authority to:

• initiate inquiries if they suspect an entity isn't adhering to the positive duty. These suspicions can arise from various sources, including government agencies, affected individuals, worker unions, or media reports
• offer recommendations after investigating an organisation's adherence to the positive duty
• issue official notices dictating what actions organisations should take or avoid to rectify non-compliance
• approach federal courts to ensure organisations follow these compliance notices
• engage in legally binding agreements with organisations specifying actions they must take or avoid.

What are the seven Standards that businesses must satisfy to comply with the positive duty guidelines?

To effectively satisfy the positive duty under the Sex Discrimination Act, the Commission has set out seven key standards. Here's a concise breakdown of these standards:

1. Leadership 

Senior leaders must understand their obligations under the Sex Discrimination Act, including the specificities of unlawful conduct. Their responsibility is to ensure that proactive and responsive measures are developed, reviewed, and clearly communicated to workers. Furthermore, leaders should exemplify respectful behaviour and be committed to furthering inclusion and gender equality in the workplace.

2. Culture 

Organisations should foster a safe, respectful, and inclusive workspace. This environment should inspire confidence in workers, motivating them to report instances of misconduct, knowing that the system will prioritise their well-being and address any issues.

3. Knowledge 

Organisations must establish a comprehensive policy on respectful behaviour and the repercussions of misconduct. This framework should provide workers with clarity on behavioural expectations, mechanisms to detect inappropriate actions, and a thorough understanding of their rights and responsibilities within the workspace. Workplace training may be an appropriate strategy for workplace safety and harassment prevention.

4. Risk management 

Organisations must be proactive in identifying and assessing potential risks associated with misconduct, taking into account both equality and the well-being of their workforce. Collaboration with stakeholders on identifying these risks is essential. Strategies should be developed to respond to these risks and, more importantly, prevent them.

5. Support 

Offering robust support systems is non-negotiable. Workers who witness or undergo misconduct should have immediate access to resources and assistance. This support should remain accessible regardless of whether the incident has been formally reported.

6. Reporting and response 

Clear channels for reporting misconduct should be readily available to workers. Regular communication about these pathways is essential. Responses to reports should be swift, consistent, and prioritised to minimise harm to those involved.

7. Monitoring, evaluation and transparency 

Consistent data collection on workplace misconduct is crucial. Organisations should harness this data to refine their work culture and bolster preventive measures. An open dialogue about the nature, extent, and subsequent actions related to reported behaviours ensures a transparent and accountable workplace environment.

The seven Standards are interconnected, meaning actions addressing one might also cater to others. Every organisation and business under the Sex Discrimination Act should adhere to these Standards, but the application will vary depending on what's reasonable for each entity. While all entities, even those without employees, are expected to comply, only applicable aspects of the Standards will concern those without workers. The Commission will evaluate compliance comprehensively, emphasising that organisations should meet all Standards to eliminate unlawful conduct.