‘Positive duty’ and the upcoming legislation to help eliminate sexual harassment

Upcoming changes to workplace sexual harassment laws are just around the corner. In order to keep compliance accounted for and employees protected, employers must be aware.

From 12 December, changes to the Sex Discrimination Act will require businesses to undertake a “positive duty” to eliminate the following in the workplace:

• 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.

These issues have been referred to by the Australian Human Rights Commission as “relevant unlawful conduct”.

Positive duty was announced in December last year, encouraging businesses of all sizes to be proactive about their harassment and discrimination policies.

“Sexual harassment is the most common form of violence against women in workplaces, with two in five women in Australia having experienced harassment at work in the past five years. Yet just 18 per cent of people have felt safe enough to report it,” said Patty Kinnersly, national violence prevention organisation Our Watch’s chief executive.

“It has a significant impact, not just on victims but also on productivity, organisational culture and employee wellbeing.”

Ms Kinnersly believes that sexual harassment is more prevalent when gender inequality is also. This places a responsibility on employers to help mitigate issues and protect at-risk workers through effective policy.

“Sexual harassment can be prevented, and change is possible,” she said. “For women to be safe, they must be equal. Sexual harassment is more likely to occur where gender inequality is normalised.”

“Equal and safe workplaces benefit everyone, and employers have an opportunity to take a whole-of-organisation approach to embedding gender equality and fostering a culture of respect.”

Shockingly, this inequality reportedly costs the economy $128 billion each year. Furthermore, one in three workers said they’ve experienced sexual harassment.

These statistics prove just how common and damaging these issues are in Australian workplaces and highlight just how crucial positive duty is.

Sex discrimination commissioner Anna Cody commented on the announcement: “Gender equality and respect are at the core of eliminating sexual harassment and other unlawful, systemically insidious behaviours from the workplace.”

“The incoming, ground-breaking inclusion of a positive duty is a systemic response to an ongoing problem. It requires organisations and businesses to take reasonable steps to prevent incidents from occurring in the first place. This is far more effective than any reactive approach.”