On August 9th 2023, the Australian Human Rights Commission released Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth). These guidelines marked a shift towards proactive measures, urging businesses to respond to incidents and take action to prevent such issues.

Furthermore, starting from December 12th 2023, the Australian Human Rights Commission will be able to assess and monitor compliance with the newly introduced Positive Duty standards.

What does this mean for you as an Australian employer?

Well, you’ll need to pay extra attention to specific elements within your workplace.

To help you do so, in this article, we’ll outline the top actionable steps you can take based on the first three out of the seven standards. *In the upcoming articles, we’ll also cover the rest of the standards.* This comprehensive coverage will equip you with the necessary insights to meet the Commission’s requirements, ensure compliance, and create a safe, respectful workplace that fosters a positive, engaging, and productive environment for all your employees.

What does the new Positive Duty guidance cover?

The new Positive Duty requirements mandate organisations to take measures to prevent workplace sexual harassment, sex-based harassment, sex discrimination, hostile work environments and victimisation. Essentially, the Positive Duty necessitates that businesses go beyond merely addressing unlawful workplace conduct after it happens. Instead, they are now obligated to take proactive steps to prevent such behaviour from occurring in the first place.

The guidance presents seven standards that serve as a framework for companies to customise their strategies in preventing unlawful behaviours. These include:

  1. Leadership
  2. Culture
  3. Knowledge
  4. Risk management
  5. Support
  6. Reporting and response
  7. Monitoring, evaluation and transparency

Keep reading to get insights on the first three standards and how you can comply with them.

3 steps to take for a more safe and respectful workplace

Here are the top actionable steps, based on the first three new Positive Duty standards — Leadership, Culture, and Knowledge, that you can implement to create a safer and more respectful workplace.

#1 Educate and empower senior leaders

For the most effective changes, it’s crucial that all employees, starting from management, understand and implement them. Therefore, empower your senior leaders with in-depth knowledge of the Sex Discrimination Act and regulations.

Consider organising focused workshops for leaders, immersing them in Australian Human Rights Commission guidance materials. Additionally, empower senior leaders to consistently and transparently communicate workplace expectations regarding respectful behavior. This can be achieved through team meetings, signs, emails, and other relevant platforms, ensuring clarity in messaging to both employees and external parties.

#2 Foster a safe workplace culture

Even without considering the new Positive Duty standards, creating a safe and inclusive workplace is crucial. When employees feel safe and valued, they remain longer with the company, trust the organisation, and are more inclined to report any misconduct.

To cultivate a safe culture, start with promoting open conversations. Clearly emphasise a zero-tolerance policy against discrimination and ensure these values are consistently echoed in official policies and daily interactions. It’s crucial that leaders at every level actively demonstrate respectful conduct, reinforcing these values. This behaviour assures teams that the entire company is aligned in upholding these principles and motivates employees to embrace them.

#3 Provide ongoing, tailored learning for all employees

You know that saying, “Knowledge is power”? We couldn’t agree with it more, especially in addressing respectful behaviour and unlawful conduct at work. Simply, you want your team to understand what respectful behaviour looks like, what counts as unlawful conduct, what leads to it, and the negative impact it can have.

One of the best ways to ensure this knowledge is well-established in your team is to tailor educational programs to fit your team’s exact needs. For example, you can conduct surveys to understand specific challenges, cultural nuances, or areas of concern related to unlawful conduct. Then, design training modules that address identified areas and incorporate case studies or scenarios relevant to your industry or company culture.

Also, forget about one-time sessions — aim for ongoing learning with regular workshops, discussion forums, or interactive sessions dedicated to supporting respectful behaviour

Adhering to the Commission’s Positive Duty guidelines: Key takeaways

Under the Sex Discrimination Act, employers can be held accountable for their employees’ unlawful actions at work (principle of “vicarious liability”). And, although the courts determine if you as an employer took “all reasonable steps” to prevent such actions, following the Commission’s Positive Duty guidelines can help you prove you’re not liable under this Act in cases of misconduct.

So, engage everyone in your company, tie the training to your organisation’s values, and consistently update and enforce your policies. Remember, it’s not just about writing them down — it’s about making them a living part of how things work day-to-day.

And, if you need further assistance with implementing or complying with the new Positive Duty standards or other regulations, we’re here to help. Contact us today to explore how our HR, legal, or employment experts can support youContact Us.