Alert: AHRC releases guidelines for new positive duty
From 12 December 2023, the Australian Human Rights Commission will have the power to enforce compliance with the positive duty obligation under section 47(c) of Sex Discrimination Act 1984 (Cth).
The positive duty requires organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:
• discrimination on the ground of sex in a work context
• sexual harassment in connection with work
• sex-based harassment in connection with work
• conduct creating a workplace environment that is hostile on the ground of sex
• related acts of victimisation
We refer to this conduct as “unlawful conduct” in this article.
The AHRC has released Guidelines to assist organisations in meeting the positive duty. The Guidelines set out four Guiding Principles and seven Standards that the Commission expects all relevant organisations and businesses to meet to satisfy the positive duty.
Four guiding principles
The Commission expects organisations and businesses to consider and apply the following Guiding Principles when implementing the seven Standards:
• Consultation: Talking to the workers about their expectations and requirements to help implement a safe and respectful culture for the worker and workplace to feel safe, as well as discussing the risks and mitigation options possible to help eliminate relevant unlawful conduct.
• Gender equality: All actions undertaken to implement the positive duty should further the purpose of achieving gender equality, promoting equal rights, rewards, opportunities and resources.
• Intersectionality: An intersectional approach recognises that the impacts of an unsafe and disrespectful working environment may have varying levels of impact on different people.
• Person centred and trauma informed: Person-centred approaches are about making systems and processes easy to understand and meet the needs of individuals. Trauma-informed approaches require that workplace processes build in an understanding of trauma and how it affects people and avoid causing further harm.
The seven standards are:
• Leadership: Senior leadership understand the obligations under the Sex Discrimination Act and they are responsible for establishing, communicating, and updating measures to prevent and address unlawful conduct, while promoting safe and inclusive workplaces through clear expectations and respectful behaviour.
• Culture: Organisations must build a culture that values diversity and equality, fostering a safe culture that empowers people to report unlawful conduct, minimise harm, and create accountability.
• Knowledge: Organisations must develop, communicate and implement a policy that educates workers on the expected standards of behaviour, identifies unlawful behaviours, and informs their workers of the rights and responsibilities in relation to the workplace and working relationships.
• Risk management: Organisations must demonstrate they recognise the risk of unlawful conduct, and take a risk-based approach to preventing and responding to the relevant unlawful conduct.
• Support: Organisations must ensure appropriate support is available to all workers, and take steps to inform the workers of the support and how it can be accessed, regardless of whether they intend to report the conduct.
• Reporting and response: Organisations must ensure there are appropriate options for reporting and responding to unlawful conduct and that the options are communicated to the workers. Organisations must also ensure they provide timely responses to any reports, and provide consistent and proportionate consequences to deal with any reports.
• Monitoring evaluation and transparency: Organisations should collect data that helps monitor the extent of unlawful conduct in their workforce, and use this data to regularly assess and improve the culture, as well as help develop measures to prevent and respond to unlawful conduct.
The Guidelines have been issued in accordance with section 35A of the Australian Human Rights Commission Act 1986 (Cth). The Guidelines are not legally binding, but they are authoritative and set out the steps that the Commission expects organisations and businesses to take to comply with the positive duty. Organisations can take other measures, but what is necessary is that an organisation or business can demonstrate that they have taken reasonable and proportionate measures to eliminate the relevant unlawful conduct, as far as possible.
More information on the duty can be found here:
Griffin Legal can assist your organisation in implementing the seven standards including:
• working with leaders to understand their obligations
• conducting risk and culture reviews
• preparing relevant policies and procedures
• providing training options
• providing advice on support options and trauma informed responses
• setting up systems for monitoring unlawful conduct and responses to unlawful conduct in your organisation.