Recent changes to the Sex Discrimination Act 1984 (Cth) now impose a ‘positive duty’ on employers to take reasonable and proportionate measures to eliminate, so far as possible, sexual harassment and other related unlawful conduct in the workplace. Employers are required to take proactive steps to prevent the conduct, rather than taking reactive steps after it has already occurred.

From 12 December 2023 the Australian Human Rights Commission (AHRC) will have new powers to investigate and enforce an employer's positive duty to eliminate sex discrimination, sexual and sex-based harassment, a hostile work environment, and related acts of victimisation. These powers include the ability to conduct inquiries, issue compliance notices, seek court-ordered compliance, and enter into enforceable undertakings with organisations.

With the holiday season and annual end of year parties around the corner, compliance with sexual harassment policies may not be top of mind, but this is also the time of the highest risk of harassment occurring. It is now more important than ever that employers give some real thought to this year’s end of year party preparation to meet this ‘positive duty’. Here’s what you need to know.

What is the Positive Duty?

In simple terms, being proactive means identifying the types of circumstances which present a risk of unlawful harassment occurring and taking measures to prevent them or minimise the risk of harm. The ‘positive duty’ requires an employer or person conducting an organisation or undertaking to take ‘reasonable and proportionate’ measures to eliminate, as far as possible (unlawful conduct):

• sex discrimination
• sexual and sex-based harassment
• conduct conducive to a hostile work environment on the grounds of sex
• related acts of victimisation.

What it means to take ‘reasonable and proportionate’ steps will look different for each organisation and will depend on a range of factors and circumstances specific to an organisation, although there are some overarching requirements. The AHRC has recently released Guidelines and a Quick Guide which set out the Guiding Principles and the seven Standards that the AHRC expects all relevant organisations to meet to satisfy the positive duty. The Guiding Principles and the Standards are intended to help organisations determine practical actions that they can implement to comply with their positive duty. The Guiding Principles highlight the need to approach the duty through consultation, gender equality, acknowledging intersectionality (the way that various elements of an individual such as gender and cultural background impact with one another) and being person-centred and trauma informed. The Standards are far more detailed and address:

• leadership
• culture
• knowledge
• risk management
• support
• reporting and response
• monitoring, evaluation and transparency.

While there are many pages in the Guidelines, these are overarching themes which organisations should consider to comply with the legislation. Organisations should also note that, in monitoring compliance, the AHRC expects documentary evidence of compliance, so an organisation should keep records of all the steps taken in satisfying its obligations, including consultation.

Practical Steps an Organisation Can Take

Organisations should look at their internal processes and operations and:

• educate senior leaders and board members on the new laws and ensure that they understand their obligations, including the need to demonstrate appropriate behaviour consistently
• ensure that policies and Codes of Conduct are clear on appropriate behaviour, what constitutes inappropriate behaviour and the consequences of not complying
• provide regular training on respectful and appropriate workplace behaviours and what to do if experiencing or witnessing inappropriate behaviour
• identify conditions or circumstances, in consultation with employees, where there is a realistic risk of harassment or a hostile environment, keeping in mind that different employees may have different perspectives
• identify and implement measures, in consultation with employees, which will eliminate or minimise the risk of inappropriate conduct occurring
• ensure that processes to report inappropriate conduct are clear to employees and are easy to access
• provide support to employees who experience or witness the unlawful conduct
• ensure that there are clear procedures and responsibilities for responding to reports of inappropriate conduct and managers know what to do if they perceive or receive a report of inappropriate conduct
• collect appropriate data to understand the nature and extent of inappropriate conduct
• ensure that reports are taken seriously, investigated in a timely manner, and individuals are held accountable for their behaviour in a transparent way (following appropriate disciplinary processes)
• monitor the organisation's work culture to ensure that it is safe and respectful and provides for gender equality
• keep records of all compliance activities, including identification of risks and the measures taken to control them, consultation, training, and responses to incidents.

Workplace End of Year Parties and the New Duty

End of year parties can provide conditions and an environment that might increase the risk of incidents like sexual harassment or other unlawful conduct occurring, especially when combining alcohol with a party atmosphere. There are several steps an organisation can take to eliminate, as far as possible, the risk associated with workplace end of year parties. Below is a list of steps your organisation should consider.

• ensure that communication before the event is clear and remind employees that the party is still a workplace function.
• ensure that employees are aware of their obligations under the policies and procedures that are in place.
• remind employees that “pre-drinks” and “after-parties” are not employer-endorsed.
• consider appropriateness of themes and activities.
• consider how alcohol is served and ensure that there is enough food.
• provide clear start and finish times. Don’t arrange drinks at a second venue unless you are prepared to accept the risks associated with doing so.
• ensure that there is supervision at the venue by a nominated senior staff member.
• ensure safe transportation home. This could include having sufficient taxi vouchers to ensure safe passage home.

What are the Consequences of Not Complying with the Positive Duty?

According to the AHRC, organisations are increasingly recognising that an unsafe and disrespectful workplace culture influences their ability to attract and retain the best people, reduces productivity, and creates significant reputational and legal risks. The publicity surrounding the “Me Too” revelations brought to light the significant harm caused by sexual harassment in the workplace, both to individuals as well as to the reputation of the organisations in which it occurred.

The legal risks for employers are very clear in the changes to the Sex Discrimination Act, which are in addition to the common law principle of vicarious liability, that is, where an employer can be held liable for unlawful conduct committed by their employees in connection with their employment. For example, if an employee was to sexually harass a co-worker at the annual end of year party, the employee will be liable, but the employer may also be liable for the actions of that employee if the employer is unable to demonstrate that they took ‘reasonable and proportionate’ steps to prevent the unlawful conduct from occurring.

Whether an organisation has taken ‘reasonable and proportionate’ steps in a particular case will depend on a range of factors and circumstances specific to the organisation. However, should the AHRC investigate, it will be looking for evidence that the organisation has at the very least thought (and consulted with employees) about identifying the risks of harassment, where it might occur, why it might occur, and taken measures to prevent it occurring. The AHRC will also be looking at how an organisation deals with any complaints of harassment. Codes of conduct, clear policies, training, senior staff modelling appropriate behaviour, and consistent and transparent action holding individuals accountable for their behaviour will go a long way to fostering a safe and respectful culture and keeping organisations and their employees safe and out of trouble.