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The Positive Duty and Sexual Harassment
from Hotel November 2024
by Boylen
BY OWEN WEBB & SARAH LEGOE
While sexual harassment and hostile work environment behaviours should be stamped out at all times, understanding an employer’s obligation in respect of sexual harassment and other unlawful sex based behaviours is of particular importance in the lead up to the Christmas season. This is not only because of the presence of workplace Christmas parties but an increase in the number of patrons visiting the hotel.
In this article we will outline what the positive duty under the Sex Discrimination Act 1984 (Cth) (Act) is and what steps employers can take to comply with this duty to take proactive, not reactive, steps in this area.
What is the positive duty?
On 1 December 2022 amendments to the Act commenced which impose on employers a positive duty to eliminate, as far as possible, certain conduct that is unlawful under the Act. This conduct includes, but is not limited to:
sexual harassment in connection with work;
sex based harassment in connection with work;
conduct which creates a hostile work environment on the ground of sex; and
victimisation.
Common forms of behaviour that may be seen as the type of conduct captured by the above includeunwelcome touching, jokes of a sexual nature, unwanted date invites, inappropriate and sexually explicit emails, unwelcome starring, jokes about one gender at the expense of another, treating a person unfavourably because they made a complaint about this type of conduct etc.
The positive duty places an obligation on employers to take action and be proactive in managing unlawful conduct, rather than be reactive to such matters.
Why the change?
The positive duty was introduced as a result of the findings and recommendations of the former Sex Discrimination Commissioner in a report titled “Respect@ Work: National Inquiry into Sexual Harassment in Australian Workplaces”. This report was prepared following a survey which found that 1 in 3 people had experienced sexual harassment while at work.
How do employers comply with the positive duty?
To comply with the new positive duty, employers must take reasonable and proportionate steps to prevent its employees (or the employer) being subjected to such behaviour whether from the employer, fellow employees or insofar as hospitality industry is concerned patrons, customers and suppliers.
What will be deemed reasonable and proportionate for a workplace is assessed on an objective basis and depends on factors such as:
the size, nature and circumstances of the business;
available resources (financial or otherwise);
practicality and cost of the control measures; and
any other relevant matters such as the working hours, systems of work, level of supervision etc.
A medium or large business which may have dedicated Human Resource or legal staff, would be expected to do more than a small business with very limited resources. Conversely, as the hospitality industry may be seen as a high risk environment for sexual or sex based harassment given the nature of the industry, more may need to be done than when compared to other workplaces (for example, a small office environment with no or limited customer or patron contact).
The Australian Human Rights Commission (AHRC) has developed Guidelines, which while not binding may be taken into account by the AHRC or a court when determining whether an employer has complied with the positive duty. The Guidelines set out seven standards that the AHRC expects employers would comply with, namely:
Leadership – management should have an understanding of sexual discrimination and harassment laws and take a proactive approach to preventing such conduct occurring.
Culture – develop a safe, respective and inclusive culture.
Knowledge – develop a policy which sets out the expected standards of behaviour and process for dealing with complaints.
Risk Management – understand that such conduct may also result in work health and safety risks (i.e. psychosocial hazards).
Support – provide support services or details of where support can be accessed.
Reporting and response –ensure employees are aware of how to report an issue and what process may be taken if they do.
Monitor and evaluate measures that are put in place to assess the effectiveness of the measures.
When developing and implementing polices, procedures or other measures in this regard, it is important to remember that the workplace for the purposes of unlawful conduct occurring under the Act, is not limited to the confines of the physical workplace during regular work hours but can extend to offsite work related events such as training, conferences or social activities (provided there is connection with work). The workplace can also extend to out of hours social media activities but this will depend on the type of conduct complained of and whether the requisite connection with the workplace can be found.
Other matters
While not a new provision, members should be mindful that the employer may be held vicariously liable for the conduct of their employees, unless the employer can prove that it took all reasonable steps to prevent the employee from undertaking the conduct complained of. Compliance with the positive duty may assist an employer in defending such a claim. What does all of this mean for members and what are some practical things members can do now?
Why so serious?
First and foremost, members need to ensure that they are both aware and have an understanding of the forms of conduct that need to be eliminated under the positive duty.
Practical steps that members may wish to consider adopting may include:
Adopt, implement and enforce a workplace policy relating to the unlawful conduct or if a policy is already in place review that policy and update where necessary.
Consult with employees to get an understanding of the ‘lived experience’ of all employees, regardless of gender, race, ability level, age etc. This will assist members in formulating appropriate measures and/or development of a workplace policy.
Regular management and staff training – this may include training on sexual harassment, respectful workplaces and/or bystander intervention training. Training can be internally run training or external training such as the bystander intervention training conducted on behalf of the AHA|SA for example.
Regular communication channels with employees to discuss the types of the behaviour and conduct that will and will not be accepted at the workplace (for example, regular staff meetings, regular email updates, information posted to the staff intranet etc).
Provide employees which details of where support can be accessed both internally (for example, speaking with Human Resources, the owner or various management staff) and externally (for example, an Employee Assistance Program, the Fair Work Ombudsman, AHRC etc).
Keep records of the steps have been taken (for example, minutes of staff meetings, copies of policies, notes of reviews of policies, details of staff or management training, copies of complaints, warning letters etc).
Encourage staff to call out or report bad behaviour and establish a process for doing.
If the conduct is patron initiated – the Duty Manger or Responsible Person on duty may wish to notify the patron the behaviour was unacceptable, cease service if necessary, ask the patron to leave, remove the patron and/or issue a barring order under the Liquor Licensing Act 1997 if deemed necessary.
Display posters at the premises which set out behaviour that is not acceptable and that a respectful and safe environment towards all is encouraged.
The above is not an exhaustive list and as set out above what will be reasonable and proportionate for each business will differ depending on the size, available resources and other factors.
Further Information
As it has now been almost two years since the positive duty was introduced, members must ensure they know of the duty and what it entails and take real steps to try and minimise harmful behaviour from occurring in the workplace. The AHA|SA has a number of resources available for members and members should contact Owen or Sarah for further information.
This article contains information that is of a general nature and is for informational purposes only. This article, and its contents, does not constitute legal advice.
Endnotes
1 See section 47C of the Act.
2 Australian Human Rights Commission, ‘Respect@Work: Sexual Harassment National Inquiry Report (2020) < https://humanrights.gov.au/our-work/sexdiscrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020>.
