How to meet your legal positive duty obligations

By Ilga Horvat

Ilga Horvat from Boutique HR examines the responsibilities of wine business employers under new workplace requirements.

Effective from 12 December 2023 the Australian Human Rights Commission (AHRC) has new powers to investigate and enforce compliance of employers and persons conducting a business or undertaking (PCBUs) positive duty obligations.

To clarify, PCBUs include sole traders, principal contractors, unincorporated associations, partnerships and franchisees. In addition, it covers those traditionally considered to be employers, self-employed people and volunteer organisations. PCBUs also include local government councils, universities, cooperatives and government departments and authorities.

In December 2022 the Sex Discrimination Act was amended to introduce a new positive duty on employers and PCBUs to eliminate workplace sex discrimination and harassment. A 12-month transition period was imposed to allow workplaces time to implement processes and initiatives to prevent and respond to workplace sexual harassment actively.

The focus is now on taking preventative action to create safe, respectful and inclusive workplaces, rather than having a reactionary approach.

Employers and PCBUs have a legal positive duty obligation to eliminate the following unlawful behaviour from occurring:

• “discrimination on the grounds of sex in a work context
• sexual harassment in connection with work
• sex-based harassment in connection with work
• conduct creating a workplace environment that is hostile on the grounds of sex
• related acts of victimisation.

The Commission refers to this conduct as ‘relevant unlawful conduct’.” (humanrights.gov.au).

Sex discrimination in a workplace occurs when someone is treated less favourably than another person because of their sex, gender identity, intersex status, sexual orientation, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities. This stems from employers or managers holding assumptions about the type of work someone can do based on these criteria.

The AHRC defines sexual harassment as “an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.” “A working environment or workplace culture that is sexually permeated or hostile will also amount to unlawful sexual harassment. Some of the factors emerging from the case law which may indicate a potentially hostile environment include the display of obscene or pornographic materials, general sexual banter, crude conversation or innuendo and offensive jokes.”

As an employer and PCBU you must be fully informed and up to date on current legislation.

 

‘I didn’t know’ will not be a reasonable excuse for not meeting your obligations.

 

A significant loss of productivity occurs when a toxic work environment exists. If that is not enough for an employer to act on these obligations then note that large penalties are being imposed for breaches. It is imperative that organisations and their people managers are fully informed and have implemented positive duty initiatives.

What do you need to do to comply with the positive duty obligations?

It is important to note that all organisations and businesses in Australia must comply with these positive duty obligations regardless of size or resources. This includes self-employed small, medium and large businesses, sole traders and government.

The AHRC has published extensive guidelines to assist employers and PCBUs in complying with these obligations. Here is a summary of the seven standards which provide the framework to use to prevent these unlawful behaviours:

• Leadership: Leaders are to understand the positive duty obligations and what conduct is unlawful. Senior leaders should role model respectful behaviour that is inclusive and equitable. They are responsible for ensuring that all that is reasonable and practicable is done to eliminate workplace sex discrimination and harassment and create a safe, respectful and inclusive workplace. They are responsible for ensuring the measures taken are updated, reviewed and communicated to their employees, agents and third parties.

The extension of the positive duty to the conduct of third parties relates to the risk they could hold to exposing their workers to unlawful sex discrimination and harassment.

 

The Human Rights website has detailed information about what constitutes this unlawful conduct.

See www.humanrights.gov.au/our-work/employers/sex-discrimination

And

www.humanrights.gov.au/our-work/projects/sexual-harassment-workplace-legal-definition-sexual-harassment 

 

• Culture: An organisation must foster a safe, respectful and inclusive workplace. This includes encouraging employees and managers to call out and report discriminative and unlawful behaviour, minimise harm and hold people accountable for their actions.

Practical ways this could be done are:

• by managers and team leaders modelling behaviour,
• ensuring company documents and policies are worded appropriately to remove any discriminatory language,
• implement a code of conduct which highlights a no-tolerance policy for discriminatory and unlawful behaviour,
• training all workers in what behaviour is expected and will not be tolerated,
• holding each other to account in informal day to day interactions if any discriminatory, disrespectful, unlawful behaviour occurs.
• Putting up posters highlighting that there will be no tolerance for sexual discrimination and harassment and identifying what those behaviours look like.
• Flexible work policies, job sharing, encouraging balance in work and life and not penalising employees for requesting time away from work to tend to a family obligation.

• Knowledge: A code of conduct, equality policies, guidelines for workplace behaviour, and responsibilities of the employer and employees, agents and third parties should be implemented. Every employee should be trained in these and have access to this material so they understand;
  • what unlawful behaviours will not be tolerated
  • what to do if they witness or experience this behaviour
  • The consequence of behaving unlawfully in the workplace

Employers and PCBUs are to train their employees, agents and any relevant third parties in these practices. It is important to ensure that translated materials where required are also available.

 

• Risk management: A risk-based approach is to be taken by employers in prevention and response to unlawful conduct and equality risk. Under WH&S laws PCBUs are required to eliminate or minimise risks to psychological health and safety. Sexual harassment is a psychosocial hazard that must be eliminated. In a practical sense this means utilising the same risk assessment approach to unlawful, sexual harassment and discriminatory behaviours, situations and complaints in the workplace.

This means:

• Identifying and assessing the risk of this conduct occurring and health and safety impact it may have
• Implementing effective controls to address the risk
• Regularly reviewing control measures for effectiveness.

Taking a consultative approach with employees is important so that the effectiveness of policies, guidelines and practices can be assessed. Toolbox talks should include an agenda item to cover consideration for eliminating unlawful and discriminatory behaviour and situations where it could occur.

 

• Support: Organisations and PCBUs are to ensure support is available to all employees including leaders and managers who experience or witness unlawful conduct. All employees need to know what support is available and where they can access it.

Support can be informal such as asking if they wish to move to another area or leave the workplace to avoid interacting with the person engaging in the said behaviour, calling them to check on them, and providing information about counselling services. Formal support can include assigning a designated mental health first aider or WH&S support officer to manage the case and providing access to counselling sessions as part of formal Employee Assistance.

 

• Reporting and response: Workers should be provided with appropriate options for reporting unlawful behaviour, and those options should be regularly communicated. All reports should be responded to in a consistent and timely manner, and in a way which minimises harm to victims. A grievance policy should be implemented. In addition to this, a procedure should be communicated to all employees, agents and third parties as appropriate which outlines the process one should take if informally or formally reporting sexual harassment, discrimination, bullying and harassment as well as instances of unsafe and unlawful behaviour. This policy must outline what the person reporting and experiencing the behaviour should expect to occur once the behaviour is reported.

 

• Monitoring, evaluation and transparency: Businesses are expected to collate data on unlawful behaviour occurring in the workplace. This follows from the risk management approach already outlined, where regular reviews of risks and the effectiveness of measures implemented to manage risks and hazards are conducted. The data collected should be reviewed in an effort to improve work culture and eliminate unlawful behaviours. This information should be communicated back to the employees and they should be kept updated with trends, patterns and actions taken by the business to address unlawful conduct and risks.

There are numerous recently tried cases where these positive duty obligations have been tested. Claims of unlawful discrimination or sexual harassment have led to record payouts. One recent case in particular shows the importance of employers’ need to take these obligations seriously. This case highlights the importance of having processes in place that have been communicated to employees for managing sexual harassment.

In this case an employee of a Sydney-based jeweller was granted a record-breaking $268,000 in damages after the Federal court found her employer subjected her to victimisation and sexual harassment. After finding in the employee’s favour, Federal Court Justice Katzmann ordered the business to compensate the employee with $140,000 in general damages, $15,000 in aggravated damages, $23,070 for past economic loss, $46,284 for future economic loss, $3000 for future out-of-pocket expenses and $40,000 for victimisation. Victimisation is where someone is treated less favourably for making a complaint and general damages are granted for her humiliation and distress. This ruling shows the stricter approach that the government has taken to workplace sexual harassment.

The important point for employers to note from this case is highlighted by Will Snow, Director, Snow Legal. He notes, “It goes to show that a business in this situation, without any policies at all, could never demonstrate that it had taken reasonable and proportionate measures to stop unlawful conduct from occurring.”

For details of the case, review the summary provided on the AHRI news site: www.hrmonline.com.au/section/legal/sexual-harassment-record-payout/#msdynttrid=O4HfWVtMlQlo67Al3ZMorZ3Zf31M4SruYfgBv-Kx354

Next steps:

Review your existing policies and processes considering the above requirements.

• If you have nothing in place, then start with a simple policy that defines sexual harassment and discrimination and notes what to do if this behaviour is experienced and witnessed.
• Display some posters and fact sheets in the office that support this policy and process.
• Communicate the policy and process in your new starter onboarding.
• Have some open discussions and conduct a survey amongst your team to get feedback about your organisational culture. Consider making it anonymous so your team are more likely to be honest, then communicate the results back to the team and have an open discussion about what improvements could be made. Implement suitable initiatives accordingly.
• Include an agenda item covering sexual harassment and discrimination risks in your WH&S meetings.

There are many resources made available on the Respect@work and Australian Human Rights Commission websites. Alternatively, if you do not have the time or resources to manage this in-house please contact us at Boutique HR at www.boutiquehr.com.au/contact-us  and we can implement systems for you to manage these obligations.

This article was originally published in the January issue of the Australian & New Zealand Grapegrower & Winemaker. To find out more about our monthly magazine, or to subscribe, click here!

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