What is “Positive Duty” and How to be Compliant with the New Sex Discrimination Laws?

What is “Positive Duty” and How to be Compliant with the New Sex Discrimination Laws

WHAT HAS HAPPENED?

The federal parliament has recently passed legislation that will implement all 55 recommendations from the Respect@Work Report including legislating a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible.

WHAT IS A POSITIVE DUTY?

A positive duty requires organisations to be proactive in addressing discrimination in order to promote equality.

Currently, under the Sex Discrimination Act, an employer will be vicariously liable for sexual harassment by an employee or agent, where the sexual harassment occurred ‘in connection with’ the employee’s employment or agent’s duties.

These provisions only arise once a complaint has been made.

A positive duty would expand employer obligations from a reactive, complaints-based approach to a duty to proactively take steps to prevent sexual harassment and sex discrimination occurring in the first place.

WHY POSITIVE DUTIES?

The current reactive process isn’t working to ensure that people are protected from sexual harassment.

As the Australian Human Rights Commission found:

  • “Sexual harassment continues to be an unacceptably common feature of Australian workplaces, with one in 3 workers experiencing workplace sexual harassment in the last 5 years.
  • Most sexual harassment in Australian workplaces is carried out by men.
  • Half of incidents are repeated and of those, half are ongoing for more than one year.
  • Reporting remains low with only 18% of sexual harassment incidents reported
    Only a third of Australian workers think their organisation is doing enough.

Acknowledgement: https://www.dca.org.au/di-planning/compliance/implementing-positive-duties

WHAT YOU NEED TO DO!

PROVIDE A PROCESS AND SYSTEM FOR REPORTING OF INCIDENTS:

So that managers and employees feel safe and supported. Make sure that the process is confidential and includes a fair process for investigating complaints. Ensure that your disciplinary procedures are up to date in case you need to apply them.

PREVENTIVE MEASURES:

Employers are required to introduce proactive measures to prevent sexual harassment from occurring in the workplace, by developing anti-harassment policies, providing regular training and education programs, establishing good reporting channels.

RESPONDING TO REPORTS:

Employers must respond promptly and fairly to any reports of harassment, including conducting appropriate workplace investigations, taking appropriate disciplinary action, and providing support for employees who have experienced harassment. Managers must ensure impartiality and confidentiality in reporting.

PROMOTING A POSITIVE CULTURE:

Promoting a positive workplace culture by fostering respect and equality and encouraging employees to speak up if they witness or experience harassment. Managers play an integral roles in this process, so employees feel comfortable reporting incidents.

EMPLOYEE COMPLAINTS AND LEGAL ACTION:

Employees who experience harassment or discrimination may file complaints with the Australian Human Rights Commission, leading to investigation and potential legal action.

TALK TO A SPECIALIST

If you have any questions, we'd love to help.
Contact your 360HR Solutions team member or our Corporate Head Office on email or 02 4225 2223.

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