The Australian Human Rights Commission (AHRC) has announced new regulatory measures to enforce positive duty in preventing unlawful conduct in the workplace.
While the legal framework has been in the works for some time, since the Respect@Work report in March 2020, the changes come into effect today, in the Commission’s latest efforts to champion safety in Australian work environments.
Sex Discrimination Commissioner Dr Anna Cody said organisations and businesses play a crucial role in fostering respectful and inclusive cultures at work.
“This is an opportunity for Australian workplaces to become what they should be – safe, inclusive, gender-equal, respectful and free from sexual harassment and sex discrimination,” Dr Cody said.
“Organisations and businesses are now required to focus on actively preventing unlawful conduct connected to work, rather than responding only after it happens.”
Positive duty in workplaces will be enforced by the AHRC’s Compliance and Enforcement Policy from today.
Here’s how it will work.
Today, the Australian Human Rights Commission implements pivotal changes to workplace obligations, guiding a new era of accountability and cultural transformation for workplaces across Australia: https://t.co/aSjbHXzyqh #positiveduty #respectatwork pic.twitter.com/AIkJSI33g1
— Australian Human Rights Commission (@AusHumanRights) December 11, 2023
What is positive duty?
The concept of positive duty refers to employers or “persons conducting a business or undertaking” (PCBUs) actively working to prevent “unlawful conduct” at work, rather than responding to or managing unlawful conduct after the fact.
The obligation of positive duty is outlined in Section 47C of the Sex Discrimination Act 1984 (Cth), which was introduced into the legislation in December 2022.
It requires employers and PCBUs to “take reasonable and proportionate measures to eliminate, as far as possible” the following acts of “unlawful conduct”, in a workplace context:
- Sex discrimination
- Sexual harassment
- Sex-based harassment
- Conduct creating a workplace environment that is hostile on the ground of sex
- Related acts of victimisation
From today, employers and PCBUs will be required to comply with the positive duty guidelines under the Sex Discrimination Act 1984 (Cth).
Dr Cody, the Sex Discrimination Commissioner at the AHRC, said the key to promoting positive duty in workplaces starts with leadership.
“Leaders of organisations and businesses play a crucial role in setting an example in preventing unlawful conduct and fostering a culture of respect and inclusiveness,” she said.
Which businesses will be investigated?
The AHRC cannot investigate every single business in Australia on whether they are complying with positive duty. Therefore, the Commission will be selective in its compliance and enforcement activities.
First, the AHRC will conduct an assessment process to confirm the Commission has jurisdiction to issue compliance notices and enforceable undertaking, and determine whether the potential compliance activities would be in the public interest.
The AHRC will also determine whether the potential activities would be an efficient, effective and ethical use of public resources, and whether there are any practical issues with conducting assessment of businesses.
Inquiries
Next, the AHRC will conduct inquiries to give recommendations on how businesses can champion positive duty in their workplace.
“The Australian Human Rights Commission will have the authority to ensure and inquire into a duty holder’s compliance with the positive duty,” Dr Cody said.
“By ensuring compliance with the positive duty obligations, the Commission, alongside Australian organisations and businesses, is taking significant strides towards fostering meaningful cultural change.”
The Commission can commence an inquiry when it “reasonable suspects” – that is, there is less than a reasonable belief but more than a possibility – an employer of PCBU is not complying with the positive duty.
The AHRC must also provide written notice to the employer of PCBU and give them time and opportunity to make oral and written submissions for the purpose of the inquiry.
The Commission will have powers, under the new changes, to obtain information and documents, as well as to examine witnesses via legal subpoenas.
At the end of the inquiry, the AHRC must give the employer or PCBU the Commission’s findings and recommendations that come out of the inquiry, as well as any compliance notices or enforceable undertakings that may arise.
Levels of compliance
Under the new changes, the AHRC has the power to use a risk-based, intelligence-led and data-driven approach to assess how businesses comply with positive duty.
The first level of compliance is voluntary compliance, which the Commission says is the most effective and efficient way to promote cultural change in relation to sex discrimination in Australian workplaces. Voluntary compliance is best enforced through education.
If businesses fail to comply with positive duty on a voluntary level, the Commission will enact an informal resolution, which is a commitment from both parties – the AHRC and the employer or PCBU – to undertake agreed action.
Failure to comply with the informal resolution will result in administrative action, where the Commission will give a compliance notice or “enforceable undertaking” to the employer of PCBU.
The final stage of compliance is court proceedings, if no other approach of enforcing positive duty results in action.
Are businesses ready?
Some legal experts, like Brigid Clark, the principal lawyer for employment, safety and migration at Macpherson Kelley Lawyers, believe businesses are not ready for the changes that come into effect today.
Clark acknowledges that the changes are positive and haven’t been seen before in the country.
“Until today, there has never been a real regulatory focus on compliance with the laws,” she says.
“Previously, someone would have to make a complaint at the workplace level, or externally to the AHRC in the first instance. Now, not only will there be regulatory oversight from the AHRC to investigate reports of non-compliance with the positive duty, but there will also be additional scrutiny from workplace health and safety regulators such as SafeWork NSW, because sexual harassment in the workplace is a psychosocial hazard.
“The greater regulatory focus will hopefully drive more proactive compliance.”
But Clark says employers will need to rethink the annual training session.
“Previously, employers might run a 1 hour training session once per year on sexual harassment or workplace behaviour,” she said.
“The changes in the law and the AHRC guidelines will show that the positive duty requires more than this – a 1 hour training session is no longer sufficient.
“The risk of sexual harassment needs to be assessed, and adequate control measures put in place – training is only one small part of this.”
Clark calls on business leaders to “lead by example” in championing respect and inclusivity in workplaces.
“At the moment, I don’t see that many organisations are proactively assessing the risks appropriately or reporting to the Board or executive level about sexual harassment in the workplace,” she said.
“They might report on physical workplace injuries, but the psychosocial hazards such as harassment are still being missed. There is an opportunity here for Australian businesses to do better.
“Ultimately, it’s good for business – it’s good for building a strong, equitable and diverse workplace culture and to attract and retain the best talent.”