On 10 August 2023, the Australian Human Rights Commission (‘AHRC’) released its new Guidelines for Complying with the Positive Duty under the Sex Discrimination Act.
While not legally binding, the Guidelines are an authoritative resource intended to support employers and others conducting a business or undertaking to comply with the new ‘positive duty’ imposed on them under the Commonwealth Sex Discrimination Act.
The new Guidelines are a helpful resource to assist employers to understand and comply with the positive duty. The Guidelines emphasise that the actions required will depend on the business and that there is no ‘one-size-fits-all’ approach.
The Guidelines provide seven standards to inform the actions that the AHRC expects employers to take in order to comply with the positive duty. These are drawn from the landmark Respect@Work Report, and are:
The standards are informed by four key guiding principles, which the AHRC expects employers to consider and apply when implementing the seven standards. The principles and their key aspects as set out in the Guidelines are:
The AHRC’s enforcement powers will commence in December 2023. This means that employers have only a few short months to prepare for compliance. Here, we set out some key recommendations that employers should act on now, based on the AHRC’s Guidelines. These are not comprehensive, but are intended to give employers a sense of some of the key actions that will be required. In particular, employers should be aware that comprehensive measures directed toward improving support for workers who have experienced sexual harassment and other unlawful conduct, as well as reporting and response pathways, are part of the new requirements.
The leadership standard recognises that in order for cultural change to happen, those in positions of leadership are vital in setting the tone and modelling the expected standards of behaviour.
In this regard, actions that employers should consider include (but are not limited to):
The culture standard recognises that workplace culture is one of the most crucial factors affecting the risk of unlawful conduct, as well the effectiveness of an organisation’s response. Your organisation should strive to foster a culture that is safe, respectful and inclusive, and that promotes diversity and gender equality.
In doing so, your organisation should take action to promote gender balance and diversity in recruitment, as well as representation and workplace inclusion, through consultation with workers including those who have lived experience of gender inequality. Employers should also consider implementing a gender equality strategy, including by establishing targets for the organisation, and regularly reviewing progress.
The knowledge standard recognises that effective and ongoing education is central to an organisation’s endeavours to eliminate unlawful conduct. The education and training required will be informed by each organisation’s own risk assessment, and should be tailored to the structure and demographics of your workforce.
The Guidelines suggest that employers should, among other things:
The Guidelines make clear that, although employers are encouraged to view sexual harassment and other unlawful conduct proscribed by the positive duty as a health and safety risk, it is essential that it also be viewed as an ‘equality risk’. Importantly, the Guidelines note that steps taken by an employer to meet their WHS obligations ‘may not equate to compliance with the positive duty under the Sex Discrimination Act (which can extend beyond conduct that presents an identifiable threat to health and safety).’
A risk-based approach involves:
In implementing a risk-based approach and conducting a thorough risk assessment, it is important that the gendered drivers of sexual harassment (and other unlawful conduct) be properly considered. It is also important that appropriate data-sources inform the risk assessment, which may include, but is not limited to:
We appreciate that compliance with the new positive duty, in a busy compliance agenda, can be daunting. Our people have a wealth of experience in the development and implementation of tailored end-to-end compliance frameworks for prevention and response for a range of clients. Our approach is collaborative, client-focussed, and recognises the need for a bespoke approach that takes account of overlapping compliance obligations, including under WHS laws.
The full AHRC Guidelines are available here.
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