The duty (see s47C of the Sex Discrimination Act 1984 (Cth)), was introduced by the Albanese Government in December 2022 as a result of the passage of the Respect at Work legislation that obliges employers to take "reasonable and proportionate measures" to prevent sex discrimination, sexual harassment, sex-based harassment, hostile work environments on the ground of sex, and victimisation. From December this year, the AHRC will be able to investigate and enforce compliance with the positive duty. In doing so the AHRC stated that it does not expect businesses to take a "one-size-fits-all" approach, but to consider the nature and size of their operations and follow its guiding principles and seven standards.

Australian Human Rights Commission – Guidance for Employers

Obligation for Employers to take "reasonable and proportionate measures" to prevent sex discrimination, sexual harassment.

The Australian Human Rights Commission AHRC's has released a set of guidelines with comprehensive instructions for employers on how they are able to meet their legislative obligations.

The duty (see s47C of the Sex Discrimination Act 1984 (Cth)), was introduced by the Albanese Government in December 2022 as a result of the passage of the Respect at Work legislation that obliges employers to take "reasonable and proportionate measures" to prevent sex discrimination, sexual harassment, sex-based harassment, hostile work environments on the ground of sex, and victimisation.

 

From December this year, the AHRC will be able to investigate and enforce compliance with the positive duty. In doing so the AHRC stated that it does not expect businesses to take a "one-size-fits-all" approach, but to consider the nature and size of their operations and follow its guiding principles and seven standards.

Principals

The AHRC guiding principles are consultation, gender equality, intersectionality, person-centered and trauma-informed.

The AHRC expects employers to consult their workers on "what they need for a workplace to be (and feel) safe and respectful, as well as the risks and mitigation options that employees see to eliminate relevant unlawful conduct".

The AHRC goes on to say that "all actions to implement the positive duty should contribute to achieving gender equality" and consider intersectionality, or an understanding that "experiences of discrimination, harassment and victimisation are shaped and increased by overlapping structural inequalities".

The Seven Standards

The AHRC has set the seven standards as being -   Leadership, Culture, Knowledge, Risk Management, Support, Reporting and Response, Monitoring-Evaluation-Transparency.

The AHRC recommends that:

• Senior leaders within an organisation act as role models.
• Organisations foster "safe, respectful and inclusive" workplaces.
• Employers educate workers on expected standards of behaviour.
• Organisations collect data to understand the nature and extent of unlawful conduct affecting their workforce.

The guidance provides examples of actions employers can take, including fostering "safe, respectful and inclusive" culture by focusing on gender balance and diversity in recruitment, and trying to increase "the representation and workplace inclusion of underrepresented groups".

 

It also provides specific examples of additional measures relevant to medium and large employers, including developing a gender equality strategy, setting and assessing gender equality targets, and consider implementing 'special measures' or positive discrimination initiatives to advance gender equality.

The breath and detail of this requirement to employers are beyond the scope of this article.  However, if you are interested in obtaining further information on this initiative by the AHRC, you can either contact me at john@lambwrc.com.au or go into the AHRC website where there is a massive amount of information relating to this requirement.

I do not doubt going forward employers will be prosecuted by not implementing reasonable and proportionate measures to prevent sex discrimination, sexual harassment, sex-based harassment, hostile work environments on the ground of sex, and victimisation.

If you are going to access the AHRC website, I recommend the following publications.

• AHRC positive duty home page
• AHRC Guidelines for Complying with the Positive Duty (August 2023)
• AHRC Information Guide on the Positive Duty (August 2023)
• AHRC Quick Guide for Complying with the Positive Duty (August 2023)
• AHRC Resource for Small Business on the Positive Duty (August 2023)
• AHRC fact sheet - Causes and Risk Factors of Sex Discrimination, Sexual Harassment and Other Unlawful Behaviours (August 2023)
• AHRC fact sheet - Effective Education and Training (August 2023)
• AHRC fact sheet - Person-centered and Trauma-informed Approaches to Safe and Respectful Workplaces (August 2023)
• AHRC fact sheet - Seeking Support - Counselling and Support Services (August 2023)

Recognition - Much of this article was drawn from a Workplace Express publication, published on September 14, 2023.