Workplace Positive Duty failure
Workplace positive duty failure – A disturbing report published in HR Director magazine revealed key gaps in workplace leaders’ awareness of their new positive duty in the workplace that was introduced As a result of amendments to the Sex Discrimination Act in 2022.
A survey of 1,500 workplace leaders and employees found that 40% of leaders are not aware of their new legal obligations to prevent workplace sexual harassment. It also found that 61% of employees lacked awareness and understanding of the positive duty.
Link to article – https://www.hcamag.com/au/specialisation/employment-law/4-in-10-australian-leaders-unaware-of-positive-duty-in-workplace-report/511786
What is the 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 centerpiece 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.
The introduction of this new positive duty will require that all employers and PCBU’s adopt a proactive (rather than reactive) approach to the prevention of all forms of sex discrimination. Previously, such an approach was only applied in the context of a defence to vicarious liability, where the employer has been required to demonstrate that it took ‘all reasonable steps’ to stop the alleged conduct from occurring.
Under this new duty, it will be imperative that employers adopt preventative measures to address sex discrimination and sexual harassment in the workplace. Link to AHRC site
Workplace positive duty failure – What can employers do?
What can employers do to satisfy the new ‘positive duty’ and take proactive and preventative action?
1. Have a policy in place that is up to date & current
2.Make sure every employee knows about the policy and where to find it
3.Review, update & provide training to support the policy that outlines;
- What sexual harassment is
- That it is unlawful
- The behavioural expectations of the organisation
- What to do if an employee is subjected to or witnesses sexual harassment
How can AWPTI help
The AWPTI Understanding Sexual Harassment in the workplace course has designed to help employers of all level including managers and senior managers to understand the behavioural expectations of the organisation and at law when it comes to sexual harassment in the workplace and for the organisation to be able to satisfy the new Positive Duty.
The 60-90 minute depending on the level of participant interaction, questions etc) course is now part of our ‘Live by Request’ series and can be delivered in person or remotely via Zoom or MS Teams anywhere in Australia or internationally.
The program provides practical skills to help enable you and your employees to recognise what is and what is not sexual harassment and offers strategies to deal with sexual harassment in the workplace.
The 1: 1 version is designed for individuals who have had issues in relation to their behaviour that may constitute sexual harassment and/or as part of remedial action have had training and coaching in understanding sexual harassment recommended. This program contains the same content as the employee or manager version dependent on the employee.
Details of the different options including the employee and managers version and the 1:1 version are here
Should a Sexual harassment incident or complaint occur we can assist with full investigation services, or if you wish to conduct the investigation internally we can provide workplace sexual harassment investigation training.
Sexual harassment investigation training
For assistance or to find out more please contact us via email [email protected] or via our contact page
we are always happy to organise a Zoom or Teams meeting with you to discuss your needs.
