Employer obligations: new positive duty on sexual harassment

Getting leaders up to speed should be a priority, says employment lawyer speaking at upcoming Masterclass

Employer obligations: new positive duty on sexual harassment

As employers move to ensure their organisations are compliant with workplace sexual harassment obligations and the new positive duty, education is key for all employees, but especially for leaders, says lawyer Tamsin Lawrence.

“Over the past 18 months, we've seen a series of pieces of legislation which have changed the obligations on employers when it comes to ensuring they have a safe workplace for their employees that is free from sexual harassment and a range of other offences related to that type of behaviour,” says the senior associate at Australian Business Lawyers & Advisors.

“Getting leaders up to speed is the starting point because as well as doing the right thing for employees, if you don't know what your duties and obligations are, how can you possibly defend yourself in saying that you're meeting your positive duty?”

From 12 December 2023, the Australian Human Rights Commission has been given the power to enforce compliance. In a recent statement, Sex Discrimination Commissioner Dr Anna Cody emphasised a strong focus will be placed on what leaders and managers in businesses are doing, and whether they're taking the issue seriously, says Lawrence, who will be speaking on the topic at the Law Employment Law Masterclass in Brisbane this coming November.

Steps to eliminate five types of behaviours

“The most notable change over the last 18 months has been the introduction of the positive duty,” she says. “This is a new kind of requirement on businesses to take all reasonable and proportionate steps to eliminate five types of behaviours: sexual harassment, sex discrimination, sex-based harassment, conduct creating a hostile workplace environment, and victimisation.”

When it comes to sexual harassment, it's no longer good enough to just say that you prevent and respond, says Lawrence. “It's not good enough, for example, just to have a policy and training - that for most businesses will not meet the standard required of the positive duty.”

From what Lawrence has seen, “most medium to large sized businesses undoubtedly still have work to do in preparation” for the December deadline.

Once leaders understand just how far the burden has shifted, they should formulate a plan, she says, and what businesses are required to do will vary depending on size, resources, and the type of industry.

There are some essential actions businesses need to be taking, says Lawrence, who will be covering these and other aspects of the law in greater depth in the Masterclass.

“The Human Rights Commission has recently put out standards and guiding principles. This includes the requirement to have done a risk assessment and look at the risk management in terms of sexual harassment.”

Offhand sexist comments now ‘literal offence’

Making sure training has been updated is also key, she says. “Most people, for example, don't cover sex-based harassment in their training. My colloquial term for this is sexist behaviour – for instance, demeaning comments on the basis of someone's sex. Most workers don't know that it's even the law. And those offhand sexist comments that might have maybe even been said in jest as a joke are now a literal offence.”

Due to the extent of the law change, Lawrence strongly recommends at least this year, that interactive training takes precedence.

“The recommendation is that anyone who's in management and HR needs to be doing in-person training at least every two years.”

As part of that training, managers also need to understand how to handle a complaint if they receive one, she says.

“The position now is that you need to be trauma-informed when you deal with someone who might report this kind of behaviour. That means being equipped to handle the complaint in a manner that is supportive and that maintains impartiality, but makes the employee aware and understand that they are fully supported in making this report.”

It’s also vital to record all the work an organisation’s doing in this space and to evaluate what's happening so that trends of behaviour can be identified.

For many businesses this is a new way of thinking, says Lawrence. For some it could present additional challenges – for instance, those in industries where it’s difficult to control the risks – perhaps in aged care facilities where workers are dealing with dementia patients.

“It’s important to make sure that your workplace is one where people do feel confident that everything has been done to eliminate this behaviour, but also that if something goes wrong, that they feel comfortable coming forward, and they know how to do that.”

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