On 10 August 2023, the Australian Human Rights Commission (‘AHRC’) released its new Guidelines for Complying with the Positive Duty under the Sex Discrimination Act.

While not legally binding, the Guidelines are an authoritative resource intended to support employers and others conducting a business or undertaking to comply with the new ‘positive duty’ imposed on them under the Commonwealth Sex Discrimination Act.

The new Guidelines are a helpful resource to assist employers to understand and comply with the positive duty. The Guidelines emphasise that the actions required will depend on the business and that there is no ‘one-size-fits-all’ approach.

The Guidelines provide seven standards to inform the actions that the AHRC expects employers to take in order to comply with the positive duty. These are drawn from the landmark Respect@Work Report, and are:

• Leadership
• Culture
• Knowledge
• Risk management
• Support
• Reporting and response
• Monitoring, evaluation, and transparency

The standards are informed by four key guiding principles, which the AHRC expects employers to consider and apply when implementing the seven standards. The principles and their key aspects as set out in the Guidelines are:

• Consultation: Workers should be consulted about what is needed for a workplace to be safe and respectful, and about the proposed prevention measures.
• Gender equality: All actions should contribute to achieving gender equality, where persons of all genders have equal rights, rewards, opportunities and resources. This includes taking steps beyond ‘equal treatment’, and taking action to achieve ‘equal outcomes’ (known as substantive equality).
• Intersectionality: An intersectional approach recognises that unsafe and disrespectful workplace behaviour may have a greater impact on different people. It involves understanding that experiences of discrimination, harassment and victimisation are shaped and increased by overlapping structural inequalities.
• Person-centred and trauma-informed: This approach prioritises safety, choice and empowerment and also recognises the impact of trauma on a person’s ability to recall information. Processes should prevent harm and promote repair and recovery to the greatest extent possible.

The AHRC’s enforcement powers will commence in December 2023. This means that employers have only a few short months to prepare for compliance. Here, we set out some key recommendations that employers should act on now, based on the AHRC’s Guidelines. These are not comprehensive, but are intended to give employers a sense of some of the key actions that will be required. In particular, employers should be aware that comprehensive measures directed toward improving support for workers who have experienced sexual harassment and other unlawful conduct, as well as reporting and response pathways, are part of the new requirements.

Leadership

The leadership standard recognises that in order for cultural change to happen, those in positions of leadership are vital in setting the tone and modelling the expected standards of behaviour.

In this regard, actions that employers should consider include (but are not limited to):

• implementing training and recording attendance amongst senior leaders and other people-leaders
• supporting leaders to lead the development on an evidence-based prevention and response plan for the organisation
• ensuring that the board and executive leadership are regularly informed about the implementation and progress toward implementing the prevention and response plan
• ensuring that senior leaders (including the board) are regularly informed about the nature of any incidents reported, and the actions taken in response (de-identified where appropriate), and of any necessary updates to policies, procedures, and training for workers
• ensuring that leaders are visible advocates for a gender equality, diversity, inclusion and respect, including at ‘town hall’ meetings and via other communication channels
• holding workers (including senior leaders) accountable for poor behaviour, and rewarding positive workplace behaviours

Culture

The culture standard recognises that workplace culture is one of the most crucial factors affecting the risk of unlawful conduct, as well the effectiveness of an organisation’s response. Your organisation should strive to foster a culture that is safe, respectful and inclusive, and that promotes diversity and gender equality.

In doing so, your organisation should take action to promote gender balance and diversity in recruitment, as well as representation and workplace inclusion, through consultation with workers including those who have lived experience of gender inequality. Employers should also consider implementing a gender equality strategy, including by establishing targets for the organisation, and regularly reviewing progress.

Knowledge

The knowledge standard recognises that effective and ongoing education is central to an organisation’s endeavours to eliminate unlawful conduct. The education and training required will be informed by each organisation’s own risk assessment, and should be tailored to the structure and demographics of your workforce.

The Guidelines suggest that employers should, among other things:

• ensure that the policies, procedures and processes concerning respectful behaviour and unlawful conduct are fit for purpose and regularly reviewed
• ensure that all relevant policies are communicated to workers and enforced by way of induction processes, training, and contracts of employment
• use quality industry, sector and profession-based educational resources which are tailored to their particular workforce and work environments and which reflect their specific risks and challenges

Risk management

The Guidelines make clear that, although employers are encouraged to view sexual harassment and other unlawful conduct proscribed by the positive duty as a health and safety risk, it is essential that it also be viewed as an ‘equality risk’. Importantly, the Guidelines note that steps taken by an employer to meet their WHS obligations ‘may not equate to compliance with the positive duty under the Sex Discrimination Act (which can extend beyond conduct that presents an identifiable threat to health and safety).’

A risk-based approach involves:

• regularly identifying and assessing the risk of relevant unlawful conduct occurring, as well as the impact that it might have on the health and safety of those affected
• implementing effective control measures to address identified risks
• regularly reviewing control measures to determine whether they remain effective and appropriate in controlling identified risk(s) and making adjustments where required

In implementing a risk-based approach and conducting a thorough risk assessment, it is important that the gendered drivers of sexual harassment (and other unlawful conduct) be properly considered. It is also important that appropriate data-sources inform the risk assessment, which may include, but is not limited to:

• the number of reported complaints and incidents to date
• the outcomes of reported complaints and incidents
• survey feedback from current and former employees, including from exit interviews
• the gender, sexuality and identity make up of your workforce (which will relate to your identification of vulnerable groups
• absenteeism and turnover data
• reports from workplace inspections
• gaps between survey feedback and reported complaints

We appreciate that compliance with the new positive duty, in a busy compliance agenda, can be daunting. Our people have a wealth of experience in the development and implementation of tailored end-to-end compliance frameworks for prevention and response for a range of clients. Our approach is collaborative, client-focussed, and recognises the need for a bespoke approach that takes account of overlapping compliance obligations, including under WHS laws.

The full AHRC Guidelines are available here.

*Corrs Chambers Westgarth