Developments on the positive duty to prevent sexual harassment

The Federal Government has taken further steps to implement outstanding recommendations contained in the Respect@Work Report (the Report), which was initially published by the Sex Discrimination Commissioner (the Commissioner) in January 2020.

Among the most significant changes is the introduction of a positive duty on all employers to eliminate unlawful sex discrimination and sexual harassment (the Duty). The Duty was formally introduced into Parliament on 27 September 2022 to implement recommendation 17 of the Report. The draft bill requires employers and other duty holders to take reasonable and proportionate measures to eliminate, as far as possible, specified forms of unlawful sex discrimination and sexual harassment under the Sex Discrimination Act.

Who will have a positive duty?

The draft bill captures employers and others conducting a business or undertaking. As drafted, the Duty requires positive steps to prevent inappropriate conduct by permanent and temporary employees, contract workers, agents and public service employees. The phrase ‘business or undertaking’ is intended to be read broadly to include contractors, franchisors, and self-employed people, in line with model work health and safety laws.

There is no exclusion for small businesses, although the size of the duty holder’s business and financial resources will be considered when assessing compliance with the Duty. Consequently, larger employers will need to do more to demonstrate compliance with the Duty than smaller employers. Evidently, the content of the Duty will vary according to the size and sophistication of the business or undertaking.

What does the duty require?

Duty holders must take reasonable and proportionate measures to eliminate, as far as possible, discriminatory conduct and sexual harassment. Reasonable and proportionate measures include proactively taking steps to ensure compliance, including understanding compliance gaps, developing a compliance strategy, and reviewing and improving compliance. What is reasonable will depend on the nature and circumstances of the employer.

The phrase ‘reasonable and proportionate’ is not defined in legislation.  However, the phrase ‘all reasonable steps’ has been considered judicially in the context of the Sex Discrimination Act and offers useful guidance about the scope of the duty. The suggested range of actions include:

  • developing a strong and clear sexual harassment and discrimination policy;

  • implementing a procedure to manage complaints fairly, effectively and in a timely manner;

  • ensuring clear and visible support by senior management;

  • taking action to ensure staff are aware of all relevant policies and procedures; and

  • implementing regular training for staff at all levels to understand their responsibilities and applicable policies and procedures.

The bottom line for employers

Under the proposed changes, all employers will have a positive duty to eliminate sexual harassment, regardless of their size. Small and micro businesses face the greatest compliance burden, as these often do not have existing policies and lack sufficient scale to maintain a human resources function to manage policies, procedures, and compliance with workplace laws. Following passage of the legislation through Parliament, a twelve-month enforcement delay will allow employers to review guidance materials published by the Commission and implement organisational changes.

For more information please contact:

Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au

Stephan Hill 
Lawyer
T +61 9611 0165
E shill@sladen.com.au                   

Stephan Hill