Whether you are working from the office or at home, at work drinks or just mixing with colleagues outside the office, starting today, Australian employers will be held legally responsible for failing to proactively take steps to prevent sexual harassment in the workplace.
The introduction of the new Positive Duty legislation marks a significant shift towards ensuring safer work environments, with significant implications for employers and employees alike.
The ‘Positive Duty’ places an obligation on employers to actively prevent and eliminate discrimination, harassment, and other prohibited behaviors within the workplace. Until now, the traditional approach focused on addressing complaints after they occurred, but the Positive Duty framework compels employers to take proactive measures to foster a culture of respect, diversity, and inclusion.
The framework extends beyond the established anti-discrimination laws, and applies to a broader range of attributes, including gender, age, race, disability, sexual orientation, and religious beliefs. People do not necessarily need to be colleagues or to work together for the behaviour to be covered. For example, it is unlawful for third parties such as clients, customers or patients to sexually harass someone while they are at work.
Employers are now required to take “reasonable and proportionate” measures to eliminate – as far as possible – sex discrimination, sexual harassment, sex-based harassment and victimisation in the workplace.
Examples of the types of measures employers should take include:
- Conducting regular risk assessments to identify potential risks of discrimination, harassment, or other prohibited behaviors within the workplace;
- Steps to prevent discrimination and harassment, including creating and enforcing comprehensive policies, providing ongoing training, and fostering a workplace culture that prioritizes diversity and inclusion;
- Consultation and engagement with employees and relevant stakeholders to gather feedback on workplace practices and policies, identifying potential areas of concern and developing effective strategies to address them;
- Monitoring and reporting of the workplace environment to gauge the effectiveness of preventative measures. Employers should establish reporting mechanisms for employees to raise concerns without fear of retaliation. Additionally, organisations are required to keep records of their compliance efforts; and
- Making reasonable adjustments to accommodate employees with disabilities, ensuring the workplace is accessible and that appropriate accommodations are provided to enable full participation by employees with disabilities.
From today, the Human Rights Commission has the power to ensure Australian workplaces, organisations and businesses meet the positive duty requirements. Employers need to familiarize themselves with the expanded scope of the Positive Duty framework, ensuring that their organizations not only comply with the law but also actively contribute to building a positive workplace culture.
