New positive duty on employers to prevent sexual harassment

In 2022 a new positive duty was placed on employers to prevent sexual harassment by amendments to the Sex Discrimination Act 1984 (Cth) (SD Act).

The new positive duty requires employers and person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate:

1. workplace sexual harassment, sex discrimination and sex-based harassment;
2. conduct that amounts to subjecting a person to a hostile workplace environment on the grounds of sex; and
3. certain acts of victimisation.

The positive duty requires employers and PCBU’s to shift their focus to actively preventing workplace sexual harassment and discrimination, rather than responding only after a complaint is made.

Guidelines for complying with positive duty

In August 2023, the Australian Human Rights Commission (AHRC) released the ‘Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)’ (Guidelines) which provides guidance on its expectations as to how employers or PCBU’s should prevent sexual harassment. The Guidelines impose significant obligations on employers and PCBU’s - the AHRC expects organisations to have in place active measures across seven standards:

1. Leadership
2. Culture
3. Knowledge
4. Risk Management
5. Support
6. Reporting and Response
7. Monitoring, Evaluation and Transparency.

The changes are extensive, including:  

1. Appropriate training for employees.
2. Appropriate training for senior leaders to ensure:
   i. they have up to date knowledge about relevant unlawful conduct;
   ii. they can ensure that appropriate measures preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers, and implemented; and
   iii. they are visible in their commitment to a workplace free of sexual harassment.
3. Fostering a culture which empowers workers and leaders to report sexual harassment and holds people accountable for any sexual harassment committed.
4. Policies and procedures concerning respectful behaviour and unlawful conduct which supports workers and takes appropriate actions against perpetrators.
5. Undertaking risk management to prevent sexual harassment and have an appropriate response in place.
6. Appropriate support is available to workers who experience or witness sexual harassment, including educating workers on what support and resources they can access whether they report the sexual harassment or not.
7. Appropriate options for reporting and responding to sexual harassment are provided and regularly communicated.
8. Appropriate means to collect data to understand the nature and extent of sexual harassment and use this data to assess and improve their workplace culture.

Vicarious liability

Generally speaking, an employer is vicarious liable for an employee’s sexual harassment unless it establishes that it has taken “reasonable steps”. Whilst the SD Act does not go so far as to say that compliance with the Guidelines will automatically protect an employer from vicarious liability, the AHRC does note in their Guidelines that:

“Whether an employer or principal has taken ‘all reasonable steps’ to avoid vicarious liability in a particular case is a matter to be determined by a court, not the Commission. Following guidance provided by the Commission on how to satisfy the positive duty, however, will help employers to demonstrate that they are not vicariously liable under the Sex Discrimination Act. The standards and examples outlined in Guidelines are consistent with, and in some respects go further than, the action that courts have traditionally expected from employers when considering vicarious liability claims under the Sex Discrimination Act.”

As such, an employer who complies with the Guidelines is likely to be best placed to defend any vicarious liability claims under the SD Act.

If an employer does not implement the Guidelines, they are at risk of a failure to comply with their positive duty and at risk of a vicarious liability claim for any sexual harassment claims made by employees.

New Powers of AHRC

From 12 December 2023 the AHRC has powers to:

1. inquire into compliance with the positive duty;
2. issue compliance notices against employees and PCBU’s;
3. promote an understanding and acceptance, and public discussion, of the positive duty; and
4. commence court proceedings in the Federal Court of the Federal Circuit and Family Court of Australia.

Reminder of legislative changes

We have attached a table at the end of the briefing note outlining the legislative changes relevant to sexual harassment.

Practical steps for employers

Employers should:

1. review current measures to prevent and respond to sexual harassment in the workplace;
2. implement robust measures to prevent and respond to sexual harassment in the workplace;
3. review and familiarise themselves with the resources released by the AHRC, including the Guidelines; and
4. implement the guidelines from the AHRC into practice.

Legislative Changes

Legislation	Changes
On 7 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 came into effect.	Introduced amendments to the Part 3-5A of the Fair Work Act 2009 (Cth), which included: sexual harassment in connection with work is expressly prohibited; employers will be held vicariously liable for sexual harassment unless they can prove they have taken all reasonable steps to prevent the conduct; and employees can make an application to the Fair Work Commission for a stop sexual harassment order.
On 12 December 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) came into effect.	Introduced amendments to the SD Act, which included: introducing a positive duty on employers and persons conducting a business or undertaking to take reasonable steps to eliminate sexual harassment in the workplace; and lowering the test for a finding of sex-based harassment. The Respect at Work Act amended the Australian Human Rights Commission Act 1986 (Cth), including amongst other things, the following: conferring new functions and powers on the AHRC to monitor and assess compliance with the positive duty as of December 2023; conferring inquiry powers on the AHRC to allow it to inquire into, and report on, issues of unlawful discrimination; and permitting a representative body to initiate proceedings in the courts if it has lodged a complaint with the AHRC on behalf of one or more persons and the complaint is not resolved at the AHRC.

If you need assistance in complying with the positive duty, or need further information, please reach out to Chris Molnar at Kennedys for a confidential discussion.