The origins of the positive duty to prevent sexual harassment (as contained within the Sex Discrimination Act 1984) are found in the Respect@Work national inquiry conducted by the then Sex Discrimination Commissioner, Kate Jenkins. A copy of the report of this inquiry, which provides very useful background and its recommendations, can found on the Australian Human Rights Commission (AHRC) website.

The positive duty requires that employers eliminate, as far as possible, the following 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 new positive duty represents a paradigm shift as it requires that proactive action be taken to prevent sexual harassment occurring, rather than purely reactive measures, such as complaint mechanisms and punitive measures in respect of perpetrators being relied on. The proactive duty also makes it clear that sexual harassment is a work, health and safety issue, as well as a conduct issue.

Fulfilling the positive duty entails implementing "reasonable and proportionate" measures to achieve the outcomes above, but what is considered reasonable will vary according to the employer's size and resources. Given factors such as workplace culture and workforce demographics vary between employers, a 'one size fits all' approach is unlikely to be effective.

The AHRC recommends using the following four 'guiding principles' as touchstones in developing measures to ensure that the positive duty is satisfied:

  • consultation – ask your employees what they need to feel safe and respected at work, and how the company can eliminate relevant unlawful conduct. This ensures your employees feel heard. An effective consultation enables the company to be better informed about issues in the workplace
  • gender equality – implement measures that advance gender equality and ensure employees of all genders have equal rights, rewards, opportunities and resources
  • intersectionality – intersectionality refers to how various facets of an individual's identify, such as their relationships and social factors, intersect and affect each other. This is important for employers to understand how a person's experience may be compounded by other forms of inequality. Embrace an 'intersectional' approach when considering the risks and impacts of relevant unlawful conduct
  • person-centred & trauma-informed – ensure your policies, systems and practices prioritise your employee's mental wellbeing, safety, needs and values. Be aware of any trauma your employees have faced, how it affects them (i.e. their ability to recall information post-incident) and avoid causing further harm. Measures put in place should promote repair and recovery.

In our view, these guiding principles provide a very useful starting point for any employer in reviewing their current measures and considering what changes may be necessary to ensure that it is doing all that is "reasonable and proportionate" to fulfil their positive duty to prevent workplace sexual harassment.

We will continue to look at further steps employers can take to fulfil the duty to prevent sexual harassment and a hostile work environment at our upcoming Australian Government lawyers CLE day on 12 March. View our program and register here.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.