Australian Human Rights Commission provides further guidance on positive duty to prevent sexual discrimination and harassment
On 12 December 2023, the Australian Human Rights Commission (AHRC) delivered a seminar about the positive duty to prevent sexual harassment and discrimination, including what to expect in terms of the compliance and enforcement.
The AHRC has previously released information around its compliance and enforcement policy relating to the positive duty and more information can be found in our previous update.
The positive duty, which has been in place for a year now and which can be enforced from 12 December 2023, requires persons conducting a business or undertaking to take reasonable and proportionate steps to eliminate:
- sex based discrimination and harassment in the context of work or in the workplace;
- conduct on the grounds of sex that subject a person to a hostile work environment; and
- related acts of victimisation.
Key takeaways from the AHRC seminar included that the AHRC:
- employer cooperation and voluntary compliance are key focuses to enforcement;
- regulatory intervention may follow conciliated complaints that fail to resolve;
- when considering its regulatory intervention, will consider matters including jurisdiction, public interest, resource allocation, nature and seriousness of the non-compliance, involvement of vulnerable workers, previous compliance posture and history of the duty holder, and the likelihood the intervention will impact cultural or systemic change;
- at its discretion, and in accordance with the enforcement policy, the AHRC may increase its level of regulatory intervention from informal resolution (via duty holders providing their commitment to undertake agreed action), to administrative action (via compliance notice or enforceable undertaking) and as a last resort the commencement of court proceedings.
AHRC resources in relation to compliance and enforcement are available on the Commission’s website (Resources on Positive Duty (humanrights.gov.au).
While the requirement to take reasonable precautions to ensure a safe workplace that is free from harassment and discrimination existed prior to the establishment of the positive duty, it is an opportune time for employers to consider their own measures, including against the guidelines of the AHRC.