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New guidance for employers on eliminating unlawful behaviour at work

23 October 2023

#Workplace Relations & Safety

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New guidance for employers on eliminating unlawful behaviour at work

Since December 2022, the Sex Discrimination Act 1984 (Cth) (SD Act) has imposed a positive duty on employers to take “reasonable and proportionate measures” to eliminate, as far as possible:

  • sex-based discrimination or harassment in connection with work
  • sexual harassment in connection with work
  • conduct creating a workplace environment that is hostile on the ground of sex, and
  • related acts of victimisation.

A fact sheet issued by the Australian Human Rights Commission (AHRC) last month sets out the key components or standards that should underpin an employer’s compliance with this obligation. These are:

  • leadership – management understands their obligations and is responsible for ensuring compliance. They are visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality
  • culture – the organisation’s culture is safe, respectful and inclusive and values diversity and gender equality. Staff are empowered to report relevant unlawful conduct, minimise harm and hold people accountable for their actions
  • knowledge – a policy regarding respectful behaviour and unlawful conduct under the SD Act is effectively communicated and implemented
  • risk management – unlawful conduct under the SD Act is elevated to the same level as safety risk and a risk-based approach is taken to prevention and response
  • support – employees who experience or witness relevant unlawful conduct under the SD Act know where they can access the support, and they receive that support if they need it
  • reporting and response – employees know how to report unlawful conduct. Managers know how to respond, and their responses are consistent and timely, minimise harm to, and victimise, people involved, and are proportionate
  • monitoring, evaluation and transparency – data is collected to understand the nature and extent of unlawful conduct under the SD Act. The data is used to regularly assess and improve the work culture, as well as to develop measures for preventing and responding to relevant unlawful conduct. There is transparency about the nature and extent of reported behaviours that could constitute relevant unlawful conduct and actions taken to address it.

Being ‘person-centred’ and ‘trauma-informed’

In developing and implementing systems and processes designed to meet their positive obligation, the AHRC expects employers to adopt a ‘person-centred’ and ‘trauma-informed’ approach.

Most employers recognise that best practice in this area requires the following:

  • when a report is received, it must be handled fairly, impartially and reasonably, and all affected employees are given a fair hearing
  • all parties should be informed in clear terms about the process to resolve the report and that they have a chance to be heard on the matter
  • the employer needs to respond in a timely manner.

However, the AHRC guidance indicates the employer’s systems and processes need to ensure that when a person raises an issue, the needs of that person are at the centre of any response. 

In particular, the system and process should:

  • enable a discussion with the affected person that is supportive and empathetic and focuses on their needs, wishes and circumstances
  • allow them to be listened to in a compassionate, non‑judgmental and sensitive manner
  • prioritise their safety, privacy and wellbeing
  • maintain their confidentiality
  • afford them access to appropriate support, and
  • give them input and choice, including the option to pursue a report, if they want to report the unlawful behaviour anonymously, over the phone, or in-person, and how to resolve the report.

Lessons for employers

The AHRC guidance suggest many employers will need to review and revise their systems and processes directed at preventing and responding to unlawful behaviour under the SD Act. The guidance still leaves open the question as to how the employer resolves conflicts that regularly arise in this area, including:

  • giving the other party procedural fairness when the complaint is anonymous, and
  • acting to prevent future unlawful behaviour when the person raising the issue does not want to pursue the matter formally.

The AHRC observes, however, that being person-centred and trauma-informed does not always mean fulfilling the individual’s requests. The expectation is only that employers genuinely consider the wishes of affected employees and the potential impact of how they handle the matter on these employees.

If you need any assistance with reviewing your current policies and processes to ensure you are meeting your duties to eliminate unlawful behaviour under the SD Act, please get in touch with a member of our national Workplace Relations & Safety team below.

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

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