Are You Compliant with Your Positive Duty Obligations?

Positive Duty Laws under the Sex Discrimination Act

The Positive Duty guidelines from the Australian Human Rights Commission have been developed to help organisations and businesses eliminate unlawful behaviour as much as possible in their workplaces.

In late 2022, the Respect Work Act was passed into law, marking a significant legislative change in Australia's industrial relations landscape. As part of this comprehensive legislation, a new legal framework was introduced, referred to as 'positive duty.'

This framework places an onus on employers to take reasonable steps to eliminate sexual harassment and sex-based discrimination within their workplaces under the Sex Discrimination Act.

The fundamental shift is that it's no longer adequate for employers to react to complaints as they arise. Instead, they now have a proactive obligation to implement measures that prevent these issues from happening in the first place.   

So, what are the Positive Duty laws?

This legal shift has far-reaching implications for businesses of all sizes, making understanding and acting upon these new requirements essential.

Gone are the days when only larger organisations with substantial HR resources were expected to grapple with such complex legal requirements. Every single business is now subject to these laws. There's no small business exemption. Failing to take reasonable steps to eliminate sexual harassment and sex-based discrimination at work can result in employers facing significant financial and reputational damage.

The clock is ticking as well.

From the 13th of December 2023, the Australian Human Rights Commission (AHRC) was able to commence pursuing claims and legal action against employers who fail to meet their positive duty obligations.

Recognising that 'reasonable steps' is a flexible term, with definitions varying from one workplace to another, is crucial. The specific actions required to meet this legal mandate will differ based on your workplace's unique risk profile.

Who exactly do the Positive Duty Laws apply to?

It's crucial to emphasise that these Positive Duty Laws apply to businesses of all shapes and sizes across the board. We can’t stress enough that there are no exemptions based on the number of employees or the nature of the business.

The legal obligation to take proactive steps to eliminate sexual harassment and sex-based discrimination applies to every single business.

Employers could face severe legal and financial repercussions if reasonable steps are not taken to ensure a safe and respectful working environment. The fines are not insignificant. The 13th of December, 2023, is a date etched in every employer's calendar. This is when the AHRC can initiate claims and legal action against employers who fall short of fulfilling their positive duty obligations. This deadline is rapidly approaching, and businesses must take action now to align with these new legal requirements.

The challenge in this scenario is understanding what constitutes 'reasonable steps.'

Unfortunately, there's no one-size-fits-all answer, as the definition varies for each workplace based on its unique risk profile. This lack of specificity has left many employers perplexed and overwhelmed, unsure of the specific actions required to comply with the law.

What are the Positive Duty Law guidelines set out by the AHRC?

Fortunately, the Australian Human Rights Commission has stepped in to provide guidance.

They've outlined four guiding principles and seven standards to help employers effectively meet their positive duty obligations.

Let's start with the guiding principles. These four principles intend to guide employers' approach to compliance:

1. Consultation: This involves engaging in conversations with workers to better understand what a safe and respectful workplace means to them. This feedback is invaluable in shaping policies and procedures.

1. Gender Equality: The initiatives implemented in the workplace should actively contribute to achieving gender equality and should not perpetuate discrimination.

1. Intersectionality: This concept recognises that workplace behaviours can impact different individuals differently. What one person perceives as discrimination may differ from another's perspective, and it's essential to acknowledge these differences.

1. Person-centered trauma-informed: The best practice approach to addressing unlawful conduct is rooted in creating systems prioritising all workplace participants' safety and dignity. This involves considering the individual's experience and trauma-informed responses.

These guiding principles provide a holistic framework when approaching your positive duty obligations. They're not rigid rules but guiding lights to ensure you're on the right path.

Additionally, the AHRC has introduced seven standards. These standards offer a more structured framework for employers to follow. Employers can ensure they comply with the new Positive Duty Laws by actively addressing these standards.

The AHRC Seven Standards for Employers

1. Leadership: Strong leadership is fundamental to achieving compliance. Leaders must be informed and proactive in preventing sexual harassment and sex-based discrimination. Their commitment sets the tone for the entire organisation.

1. Culture: Organizational culture plays a pivotal role. A workplace culture that actively discourages discrimination and harassment is essential. This culture should align with the organisation's values, creating an inclusive and respectful environment.

1. Knowledge: Training and education are vital components of compliance. Employees must be well-versed in what constitutes discrimination and harassment, what to do if they encounter such behaviour, and how to prevent it.

1. Risk Management: Understanding your workplace's risk profile is crucial. A comprehensive risk assessment is necessary to identify areas where risk is heightened and to develop strategies to mitigate it.

1. Support: A critical aspect of compliance is providing support to employees. This includes mechanisms for individuals to report incidents and receive assistance in addressing issues effectively.

1. Report and Respond: Having established procedures for reporting and responding to incidents is a must. These procedures should be efficient and effective, enabling prompt action to address any concerns.

1. Monitor, Evaluate, Transparency: The final standard emphasises the importance of continuous assessment. Employers must monitor the effectiveness of their positive duty processes, evaluate their procedures, and maintain transparency throughout the process. Transparency is an increasingly vital component of compliance in the modern workplace.

By addressing these seven standards, employers can construct a robust framework that fulfils their positive duty obligations under the law.

The key takeaway is that it's time for action.

Legal action can now be taken against non-compliant employers, making it essential to act promptly to create a safe, respectful, and compliant workplace for all employees.

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