An Employer’s Positive Duty to Prevent Unlawful Sexual Conduct is in Place

Since 12 December 2023, your organisation can face a visit from the Australian Human Rights Commission (AHRC).

In the latest wave of legislative amendments of the Sex Discrimination Act 1984 (Cth), businesses are required to take additional reasonable and proportionate steps to eliminate, as far as possible, certain unlawful conduct. The conduct includes:
  • Sex discrimination in a workplace;
  • Sexual harassment in a workplace;
  • Sex based harassment in a workplace;
  • Conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex; and
  • Certain acts of victimisation.
What does this mean?
It means that no longer are you at risk as an employer simply if someone complains – you are at risk at all times if you do not treat the issue seriously. The requirement for employers to take preventative action is called the ‘positive duty’.

You may be thinking, as an employer I already can’t allow any of the above conduct in my workplace, so what’s changed?

In a nutshell, employers (as persons conducting a business or undertaking (PCBUs)) already had a positive obligation to take reasonably practicable steps to provide a psychologically healthy and safe working environment, which includes eliminating, and where that’s not possible, minimising hazards in the workplace (such as the conduct listed above).

A failure to meet this obligation could result in a SafeWork Inspector knocking on the doors of your workplace, as has recently happened in a case in Victoria. The case resulted in a successful prosecution by WorkSafe Victoria of two companies and an associated director for serious sexual harassment.

The obligation to take reasonably practicable steps against workplace harassment has not changed and will not change any time soon.

The difference from 12 December 2023 is that the AHRC also has powers to investigate and force compliance with the positive duty through the issuing of compliance notices and entering into enforceable undertakings with employers. A failure to comply with a compliance notice could result in the AHRC taking legal action against an offending employer in the courts to compel compliance.
So, what does this mean for businesses?
The steps an employer must take to satisfy the positive duty will look different in every workplace. However, the Fair Work Commission has already weighed in on the positive duty in a recent decision. It said that employers must let go of the “notion that an employer can only act on alleged misconduct if there is a “formal complaint”.

This resonates with the intentional shift in Australian legislation from 2020 to 2023 to move the onus from the complainant to the employer when it comes to eliminating unlawful sexual conduct in the workplace. Importantly, these changes apply to all workplaces.

On top of the AHRC’s enhanced powers, we can expect to see more activity from SafeWork NSW in this space. In October 2023, the regulator released its Respect@Work Strategy for 2023 – 2025, where it committed to (amongst other things) “proactive and targeted visit programs” and increased regulation of workplaces to educate, investigate and prosecute businesses for serious incidents of sexual harassment.
SafeWork NSW expressed a particular focus on the hospitality, healthcare, social assistance and retail industries, as well as SMEs, public administration, the construction sector and workplaces with high-risk work groups (including women, younger workers, LGBTIQA+ workers, workers with a disability and First Nations and Aboriginal and Torres Strait Islander peoples).

With the maximum penalties for category one offences (the highest level of offence) under the Work Health and Safety Act 2011 (NSW) escalating from 1 July 2024 for:
  • PCBUs from $3,992,492 per offence to $10,424,983 per offence, and
  • Individuals (such as directors) from $798,383.25 to $2,168,028.45,
we do not recommend a light touch with the measures your organisation takes to eliminate unlawful sexual conduct in the workplace.

In this case, what directives will you issue your employees? Will RSI be managed well? Is there a clear finish time? How do you manage employees living remotely and leaving the workplace at a late hour – especially those that fall within the ‘high-risk work groups’?

Hicksons specialist Workplace Relations lawyers have extensive experience in assisting employers and businesses with managing workplace situations and proactively identifying issues and solutions.

Please contact Hicksons’ Partner, Warwick Ryan, at [email protected] should you need any assistance or guidance.

Post by Hicksons’ Partner, Warwick Ryan and Associate, Alex Beal.

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