Implementing [email protected]'s positive duty to prevent sexual harassment

Amanda Lyras
18 Aug 2022 Time to read: 3 MIN

Now is an opportune time for employers to start considering what steps need to be taken within their organisations to prevent sexual harassment.

There has been much debate about whether a positive duty to prevent sexual harassment should be legislated in the Federal Sex Discrimination Act 1984 (Cth), following the release of the Australian Human Rights Commission’s (AHRC) [email protected] report in January 2020. The Coalition Government held off doing so, observing that work, health and safety laws already created a positive duty to manage hazards to a worker’s health, including sexual harassment. The Attorney-General however recently confirmed the Labor Government will work with stakeholders to implement the balance of the recommendations made by the AHRC, including the positive duty, as a priority.

So what will this mean for employers? In short, it will require employers to re-examine their frameworks for the oversight and management of sexual harassment. Similar to the obligations that arise in the work, health and safety space, it will require that organisations have an end-to-end framework that identifies specific sexual harassment risks, with reference to company, cultural and industry drivers, and apply appropriate controls to eliminate or minimize those risk factors.

It is clear that the existing legal framework has not been effective at eliminating sexual harassment in the workplace. Despite many organisations having comprehensive policies and procedures on sexual harassment, and reinforcing these through staff training, workplace sexual harassment remains pervasive. There is often a disconnect between policies and statements of intent and what occurs in practice on the ground. The positive duty aims to tackle this by requiring a nuanced approach to be taken in response to an organisation’s specific risk factors relevant to sexual harassment.

In essence, the positive duty requires proactive action to address sexual harassment in the workplace as a whole, rather than treating sexual harassment as an individual grievance that is responded to reactively when a complaint is raised.

What is a positive duty likely to require?

The AHRC’s [email protected] report recommended that a positive duty at the Federal level be modelled on the positive duty under the Victorian Equal Opportunity Act, which requires employers to take reasonable and proportionate steps to eliminate discrimination, sexual harassment and victimisation as far as possible. The relevant measures will have regard to factors such as the nature, circumstances and size of the organisation, its resources and the practicability and cost of the measures, and so will vary depending on the organisation. There is "no one size fits all" approach.

Currently, Federal discrimination legislation does not impose a standalone obligation on organisations to take proactive steps to prevent sexual harassment from arising in the workplace. Rather, steps taken by an organisation to prevent sexual harassment become relevant where a sexual harassment incident is alleged, as an employer can be vicariously liable for the conduct of its employees where it has not taken "all reasonable steps" to prevent that conduct occurring. For this reason, many organisations have policies and procedures dealing with sexual harassment, and training programs reinforcing those policies and procedures. However, liability in this context is only considered in the context of an individual claim and does not require a "whole of organisation" approach to risk management.

Of course, it remains to be seen how a positive duty to prevent sexual harassment may be legislated at the Federal level. Queensland is also currently examining the introduction of this duty.

Where to from here?

Now is an opportune time for employers to start considering what steps need to be taken within their organisations to prevent sexual harassment. Putting aside the positive duty, tackling this issue effectively as part of prudent risk management is essential to supporting the safety and wellbeing of staff and is consistent with the expectations of shareholders, investors, employees, regulators and the community.

An organisation’s existing work, health and safety framework will be a useful starting point, in terms of drawing on existing risk assessments that are applied to work health and safety risks generally across the business.

In the context of a best-practice sexual harassment-specific risk assessment, an employer should identify what risk factors exist in the organisation in respect of sexual harassment, having regard to matters such as:

  • worker demographics and engagement models;
  • working patterns;
  • the conditions and locations of work;
  • any power or gender imbalances;
  • the industry in which the organisation operates and any unique risk factors;
  • culture/engagement survey results;
  • the nature and frequency of complaints that are raised through grievance and whistleblowing channels; and
  • other factors that can increase the risk of discrimination or harassment.

Once the relevant risks have been identified, consideration will then need to be given to what reasonable and proportionate controls that can be implemented to manage those risks, which may include some or all of the following:

  • tailoring work or roster arrangements;
  • instituting physical controls, like lighting and cameras;
  • implementing policies and practices to encourage greater gender equity, including in leadership, and which clearly prohibit discrimination and harassment;
  • developing effective discrimination and harassment training that is rolled out periodically to staff and keeping clear records of staff attendance;
  • conducting bystander training;
  • assessing worker understanding of policies and procedures;
  • monitoring the workplace environment and culture and responding to any risks or incidents;
  • considering cultural and engagement data and taking appropriate steps in response;
  • developing effective and timely procedures to respond to complaints, including internal grievance mechanisms and whistleblowing channels, and assessing the effectiveness of those mechanisms (including whether they are being utilised and what happens once complaints are made);
  • assessing reward and consequence management frameworks;
  • ensuring proper supervision and managerial arrangements; and
  • ensuring employees understand that discrimination and harassment, where substantiated, will be met with disciplinary action – and taking disciplinary action, where appropriate.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.