Positive duty to eliminate sexual harassment will require a shift in focus
Since December 2022, the Sex Discrimination Act 1984 (Cth) has imposed a positive duty on employers to take reasonable and proportionate measures to, as far as possible, eliminate:
- sex-based discrimination or harassment in connection with work;
- sexual harassment in connection with work;
- conduct creating a workplace environment that is hostile on the ground of sex; and
- related acts of victimisation.
Key components underpinning compliance
The Australian Human Rights Commission (AHRC) recently released guidelines that set out the key components or standards that should underpin an employer’s compliance with this obligation. These are:
- risk management;
- reporting and response; and
- monitoring, evaluation and transparency.
In addressing these standards, the AHRC expects employers to consider certain principles, one of which is to make sure each system and process developed and implemented to meet the positive obligation is person-centred and trauma-informed.
This will still require the approach that most employers recognise to be best practice, namely:
- when a report is received, it must be handled fairly, impartially and reasonably, and all affected employees given a fair hearing;
- all parties should be informed in clear terms about the process to resolve the report and how they will have a chance to be heard on the matter; and
- the employer needs to respond in a timely manner.
Achieving a person-centred and trauma-informed approach
The AHRC guidance suggests most employers will need to review and revise their systems and processes to achieve a person-centred and trauma-informed approach. In particular, when a person raises an issue, the system or process should enable a discussion with that person that is supportive and empathetic, and focuses on the person’s needs, wishes and circumstances.
Furthermore, a person-centred and trauma-informed approach will ensure all affected workers:
- have their safety, privacy and wellbeing prioritised, and their confidentiality maintained;
- have access to appropriate support;
- are listened to in a compassionate, non‑judgemental and sensitive manner; and
- are allowed to have input and choice, including the choice not to pursue a report, or if they do want to pursue it, options to report the unlawful behaviour anonymously, over the phone, in-person, and choices about how to resolve a report.
The AHRC guidance still leaves open the question as to how the employer resolves conflicts that regularly arise in this area, including:
- giving the other party procedural fairness when the complaint is anonymous; and
- acting to prevent future unlawful behaviour when the person raising the issue does not want to pursue the matter formally.
The guidance does note, however, that “being person-centred and trauma-informed does not always mean doing what the person requests. It means genuinely considering their wishes and the impact that decisions may have on them”.
You can view and download a range of guidance material on the positive duty from the AHRC website. You can also refer to the Employment Law Handbook chapter, Sexual harassment, for additional practical advice.
Get the latest employment law news, legal updates, case law and practical advice from our experts sent straight to your inbox every week.