Sexual Harassment Positive Duty

Sexual Harassment Positive Duty – On 25 November 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 was passed into Law. The Act to implements recommendations from the AHRC 2020 Respect@Work report. It will significantly strengthen Australia’s regulatory framework in respect of sex discrimination, and in particular, sexual harassment.

The new positive duty

The centrepiece of the Act is the introduction of a positive duty to prevent sex discrimination and sexual harassment.

The Act amends the Sex Discrimination Act 1984 (Cth) by introducing a new positive duty for all employers to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, unlawful sex discrimination, including sexual harassment, sex-based harassment, hostile work environments and victimisation. This duty will coexist with existing duties under work health and safety laws, including the duty of employers to provide a safe working environment for workers, so far as reasonably practicable.

The Australian Human Rights Commission  concluded in the Respect@Work report that a positive duty shifts the burden from individuals making complaints to employers taking proactive and preventative action. As the positive duty is an ongoing duty, it shifts the emphasis from a complaints-based model to one where employers must continuously assess and evaluate whether they are meeting the requirements of the duty.

Under this new duty, it will be imperative that all employers and organisations adopt preventative measures to address sex discrimination and sexual harassment in the workplace, one of the most important preventative measures is training your employees to understand what sexual harassment is and that it is unlawful.

Workplace Sexual Harassment – Compliance with the new positive duty

It is vitally important to note that from 1 December 2023, the Australian Human Rights Commission (AHRC) can inquire into compliance with the new positive duty. If non-compliance is reasonably suspected, the AHRC can issue a compliance notice and apply to the Federal Court for orders to direct compliance with the notice. More about compliance with the positive duty here

Sexual Harassment Positive Duty – Employers vicarious liability.

A person who sexually harasses someone else is primarily responsible for their behaviour. However, in many cases organisations can also be held liable for sexual harassment by their workers, agents and contractors, unless they can show that they took steps to prevent the sexual harassment from occurring. This is known as vicarious liability.

Under the Sex Discrimination Act, to avoid vicarious liability an employer must take all reasonable steps to minimise the risk of discrimination and harassment occurring. All reasonable steps is not defined in the Sex Discrimination Act, but is determined on an organisation’s size and resources.

Reasonable steps could mean that an employer has:

  • an appropriate sexual harassment policy
  • trained employees on how to identify and deal with sexual harassment
  • put in place an internal procedure for dealing with complaints
  • taken appropriate remedial action if and when sexual harassment occurs.

Sexual Harassment Positive Duty – What can employers do?

To ensure that you are taking ‘reasonable and proportionate measures’ to eliminate sexual harassment in the workplace you must ensure that you have;

  1. Clear well written policies that outline what sexual harassment is and that it is unlawful.
  2. The polices accessible to all employees both in the content and where to find them.
  3. Training to support the policies and provide full details of what sexual harassment is, how it happens, that it is unlawful and what do if an employee is subjected to or witnesses sexual harassment in the workplace and what organisations and HR professional must do when complaints of sexual harassment in the workplace are received.
  4. A trusted and accessible reporting mechanism for victims and witnesses
  5. A professional and timely investigations when complaints of sexual harassment in the workplace are made

Having these 5 elements in place will not only go to satisfy your duty of care to your employee and satisfy the positive duty to ‘reasonable and proportionate measures’ to eliminate sexual harassment in the workplace.

In addition you will create a culture that does not except sexual harasmemet in the workplace and will encourage victims and witnesses to come forward.

The Respect@Work report also made a number of recommendations that relate to employers and employees including changes to the Fair Work Act.

 FWC sexual harassment ‘stop orders’ – to give workers access to a fast, low cost, informal mechanism to deal with complaints. Changes to the Fair Work Act will enable the FWC to make an order to stop sexual harassment in the workplace, as part of the FWC’s existing anti-bullying jurisdiction. As with a bullying order, the orders are intended to prevent the risk of future harm.

This follows on from recent changes to include sexual harassment in the definition of ‘serious misconduct’ in the Fair Work Regulations 2009 (Cth).

Sexual harassment can be a valid reason for dismissal – the amendments make it clear that sexual harassment is serious misconduct and therefore can be a valid reason in determining whether a dismissal was harsh, unjust or unreasonable.

On 10 September 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 was enacted.

Workplace Sexual Harassment – NOW is the time to act, AWPTI can assist you with training & investigation services
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