Navigating the New Positive Duty: A Guide for Employers to Prevent Workplace Sexual Harassment

Posted On

July 27, 2023

Posted By

Kylie Thomas

In December 2022, a significant shift occurred in Australian workplace law. A new positive duty was imposed on employers and persons conducting a business or undertaking (PCBUs) to eliminate workplace sex discrimination and harassment. This change requires employers and PCBUs to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth), introducing a positive duty on employers and PCBUs to eliminate:

  • Workplace sexual harassment, sex discrimination, and sex-based harassment
  • Conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex
  • Certain acts of victimisation

This new positive duty imposes a legal obligation on employers and PCBUs to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex, and victimisation from occurring in the workplace or in connection to work.

The Importance of Prevention

Sexual harassment is an insidious issue that casts a shadow over individuals and the workplace alike. The repercussions are far-reaching, with the potential to inflict emotional trauma on individuals, while also undermining the workplace through diminished productivity, escalated absenteeism, elevated employee attrition, and potential legal ramifications.

Aside from the moral obligation to create a workplace that’s both safe and respectful for all employees, there’s a legal requirement for employers to be proactive and vigilant in preventing and addressing sexual harassment.

Understanding the Positive Duty

The concept of ‘positive duty’ entails a legal obligation for employers to actively engage in measures to eradicate both sexual harassment and victimisation. It is imperative to recognise that merely reacting to complaints as they surface is insufficient.

A Deeper Look at the Law

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 is a significant piece of legislation that has far-reaching implications for employers and PCBUs. It amends the Sex Discrimination Act 1984, introducing a positive duty on employers and PCBUs to eliminate workplace sexual harassment, sex discrimination, and sex-based harassment.

This law also covers conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and certain acts of victimisation. This means that employers and PCBUs are now legally obliged to take proactive and meaningful action to prevent such behaviours from occurring in the workplace or in connection to work.

The law is designed to shift the focus from responding to incidents of sexual harassment and discrimination after they occur to actively preventing them. This represents a significant change in the approach to managing workplace sexual harassment and discrimination in Australia.

The Guide to Managing Workplace Sexual Harassment

To help employers navigate these new obligations, we have developed a comprehensive guide on managing workplace sexual harassment. This guide stands as a roadmap, laying out a tried-and-tested approach for preventing and addressing sexual harassment in the workplace.

The guide encompasses invaluable insights and strategies for the adept handling of complaints, ensuring safety and efficacy. Moreover, the guide delineates six fundamental standards that employers must adhere to in fulfilling their positive duty to eliminate sexual harassment. These standards are clarified with practical examples, providing a concrete demonstration of how they can be applied in everyday situations.

Frequently Asked Questions

What does ‘positive duty’ mean?

Positive duty refers to the legal obligation imposed on employers and PCBUs to actively engage in measures to eradicate both sexual harassment and victimisation in the workplace.

What does the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 cover?

The Act introduces a positive duty on employers and PCBUs to eliminate workplace sexual harassment, sex discrimination, and sex-based harassment. It also covers conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and certain acts of victimisation.

What are the implications of this Act for employers and PCBUs?

Employers and PCBUs are now legally obliged to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex, and victimisation from occurring in the workplace or in connection to work.

Next Steps for Employers

As an employer, it’s crucial to take proactive steps to meet these new positive duty obligations. Here are some actions you can take:

  • Regularly monitor the implementation of your action plan and evaluate its effectiveness. This can be done through employee surveys, feedback sessions, and reviewing incident reports.
  • Consider collaborating with external organisations or experts in the field of workplace harassment prevention. This can provide additional insights and resources for your organisation.
  • Encourage a culture of respect and inclusion within your organisation. Recognise and reward positive behaviour and create opportunities for employees to engage in diversity and inclusion initiatives.
  • Regularly review and update your sexual harassment policies to ensure they remain relevant and compliant with legal requirements. Involve employees in the review process to ensure their perspectives are considered.

Take Action NOW!

As a business owner, it’s your responsibility to ensure a safe and respectful workplace for all employees. Don’t wait until it’s too late. Start implementing change now. Download our comprehensive guide on managing workplace sexual harassment which includes a workplace sexual harassment risk assessment so you can understand your gaps. Take the first step towards creating a safer workplace today. Download the guide now from our resources page on the website.

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