HR Tips & Answers

Workplace Sexual Harassment & Positive Duty

Time is running out to ensure compliance with the new ‘Positive Duty’ legislation.

The deadline of 13 December 2023 is fast approaching!  And after this date the Australian Human Rights Commission will then have the power to investigate employers and enforce the new laws; heavy penalties will apply.

Did you know that the Sexual Discrimination Act has been amended and the scope of what constitutes sexual harassment has been expanded?

The scope now takes into account any situation connected to work including the workplace and imposes a Positive Duty on employers to shift their focus to prevention rather than responding after the fact.

Under the revised Act employers now have a Positive Duty to take reasonable steps to eliminate as far as possible the following unlawful behaviours from occurring:

  • Discrimination of the grounds of sexual orientation in the workplace
  • Sexual harassment in connection with work
  • Sex-based harassment in connection with work
  • Conduct creating a workplace environment that is hostile on the grounds of sexual orientation
  • Related acts of victimisation

An employer’s Duty of Care as we previously knew it has changed to a Positive Duty of Care whereby an employer must have preventative measures in place to protect its employees from sexual harassment.

The new Positive Duty applies to all employers from sole traders to government,  irrespective of their size and also imposes legal obligations on employers to take meaningful action to actively prevent these actions occurring.    Proactive rather than reactive must become the new norm for all employers.

Both the employer and employees must clearly understand what actions constitute sexual harassment; including but not limited to behavioural, psychological, psychosocial, physical and verbal.

Remember the possibility of being offended humiliated or intimidated by another’s behaviour constitutes sexual harassment no matter the intention of that person.

The 7 key areas for action identified in the Respect@Work Report published in March 2020 are:

  1. Leadership,
  2. Knowledge,
  3. Culture,
  4. Risk assessment & transparency,
  5. Support
  6. Reporting, and
  7. Measurement
respect@work workplace prevention and response framework
(Image courtesy of Respect@Work)

Employers must make certain that leaders in the business understand what their responsibilities are.  This is an opportunity to review their workplace culture; is it safe & respectful, is it diverse & inclusive, are their employees accountable for their actions?

Employers should provide regular effective education, training and information to employees at all levels to ensure that they have knowledge and understanding rights, responsibilities in regard to sexual harassment.

It’s also important for businesses to review their policies, procedures & processes to ensure that they provide relevant, understandable and practical information to employees at all levels of the business.  If these don’t already exist then new documents & processes must be implemented as soon as possible.

Making certain that Support mechanisms, Reporting and Monitoring processes are robust and transparent and that they promote an atmosphere of care, consistency and commitment to openness within the business.

Most importantly employers should create a safe, inclusive and respectful workplace with a culture wherein employees feel safe, supported and empowered to raise issues of sexual harassment without fear of repercussion and know that it will be investigated appropriately.

In meeting its Positive Duty of Care and creating a workplace where all employees feel safe and protected in their work, it is anticipated that employers will see new and positive cultures emerge in their workplace which in turn will assist them with attracting quality employees and positive productivity outcomes.

Do you know what the new changes mean for your business?  Don’t know where to start?  Give Leisa and the WorkBetter team a call today!

Published: Monday, August 21st, 2023

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