AHRC’s powers to monitor and enforce employers’ positive duty to prevent workplace sexual harassment commences soon

The Australian Human Rights Commission’s new powers to monitor and enforce compliance with the positive duty to prevent workplace sexual harassment commences in December, signalling a major change for how employers will be assessed for taking proactive and meaningful action to maintain safe and respectful workplaces. We take a look at what directors need to know and a new guide released by the AICD to support directors in meeting their positive duty obligations.

The AHRC delivered its landmark Respect@Work Report in 2020, highlighting the prevalence of sexual harassment across Australian workplaces and making extensive recommendations for change across government and business.

Three years on, a key recommendation of the Respect@Work Report has introduced a new positive duty on employers to take reasonable and proportionate measures to prevent workplace sexual harassment. The positive duty also applies to a broader set of harmful behaviours - including sex discrimination, sex-based harassment, hostile work environments based on sex, and victimisation (similar harmful conduct).

The positive duty will apply to all employers with no exclusions. However, in recognition there is ‘no one size fits all approach’ to eliminating sexual harassment. What is considered ‘reasonable and proportionate’ measures by an employer will vary depending on the organisation’s nature, size, circumstances and resources available.

Importantly, the reforms to Australia’s Sex Discrimination laws have also equipped the AHRC with a range of new regulatory tools to monitor, assess and enforce compliance with the positive duty, commencing on 12 December 2023. This delayed commencement follows a 12-month transitional period that has enabled employers to prepare and implement changes to organisational process, policies and systems where necessary.

The AHRC released its positive duty guidelines in August, outlining ‘Seven Standards’ on what the AHRC expects organisations to do to satisfy the positive duty across key areas of an effective prevention and response framework, identified in the Respect@Work Report.

AICD director’s guide

It is without question that sexual harassment in the workplace is relevant to various streams of the board’s work including oversight of organisational culture; workplace health and safety; and risk management. Just as directors have played a positive role in driving better workplace health and safety outcomes, directors can ensure organisations prioritise developing a respectful workplace free from sexual harassment.

To support directors in meeting their positive duty obligations, the AICD has released a Director’s Guide to the Positive Duty which provides key governance steps for boards and questions for directors to ask management about their organisational approach, aligned to the AHRC’s Seven Standards of:

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

Underpinning this framework for action, the AHRC recommends four key guiding principles:

• Consultation: recognising that policies, processes and strategies to address sexual harassment and sex discrimination will be most impactful where informed by consultation with employees.
• Intersectionality: recognising that some groups may be affected differently by sexual harassment and sex discrimination due to aspects of a person’s identity intersecting with other factors (e.g. gender identity, sexual orientation, culture and race).
• Gender equality: recognising that sexual harassment and sex discrimination can often be perpetuated by gender inequality within the organisation.
• Person-centred and trauma-informed: recognising that an impacted person’s experience, preferences and needs should be genuinely considered in any organisational response to sexual harassment and sex discrimination, and further harm to the individual through the process be avoided.

WGEA reporting

Importantly, from 2024 the Workplace Gender Equality Agency (WGEA) will collect data from organisations with 100 employees or more on workplace sexual harassment prevention measures. This is in addition to the current reporting of gender pay gap information to WGEA. See AICD’s earlier update on these changes here.

Sexual harassment reporting will cover policies or strategies, risk management practices, measurement of sexual harassment prevalence and reporting, and available support for employees who have experienced or are presently experiencing sexual harassment.

This means that employers will be reporting to WGEA each year on many of the measures that go to meeting their positive duty obligations. This is an opportunity for directors to assess the effectiveness of these measures, challenge management and set expectations for improvement if required.

AICD Webinar: Positive Duty to Prevent Workplace Sexual Harassment – guidance for directors

The AICD is hosting a complimentary webinar discussing the positive duty and practical insights on how directors can meet these obligations in practice with the AHRC’s Sex Discrimination Commissioner, Professor Anna Cody, and director panellists James Fazzino (Chair of Manufacturing Australia) and Susie Corlett (Non-executive director, Iluka Resources).

The webinar will be held on Wednesday 1 November 2.30-3.30pm AEDT, with a recording available. You can register here.