How to Comply with the Positive Duty?

What is the positive duty? The positive duty is a legal obligation introduced into the Sex Discrimination Act 1984 (Cth) in December 2022. 

Previously, it was left to workers to report unlawful behaviours. The positive duty removes this burden from workers by requiring organisations and businesses to take preventative action, regardless of whether a report is made.

Who must satisfy the positive duty? Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must satisfy the positive duty. 

What does this mean for your organisation?

employers have to prove they are preventing sexual harassment and sex discrimination, not merely responding to it. The risks of non-compliance include legal liability, costs, and damages, as well as harm to your company’s reputation. For example, in Victoria, Bakers Delight was investigated and found to not have a sexual harassment prevention plan or a central register to record complaints. It has also not trained staff on how to prevent sexual harassment. It’s worth noting that no complaint was made against the bakery chain – they simply didn’t comply.

SIX STEPS TO MEET POSITIVE DUTY

1. Show Knowledge and Leadership: Management needs to role model good behaviour, be across the legislation and its policies, and communicate with staff.

2. Do a Risk Assessment: Just like any other health and safety issue, businesses need to identify risks in their business.Engage with staff to understand their perceptions of safety, such as interactions with customers, late-night work, or office banter, to pinpoint potential risks.

3. Review Your Policy: Ensure that your sexual harassment policy is comprehensive and stands alone, not as an adjunct to another policy. From here, make sure to communicate and enforce the policy. There’s no point having a policy if no one knows where it is or what to do.

4. Train, Train, Train!: Once leadership understands how to identify and address sexual harassment, it's imperative to provide specific training for all staff. This means specific training – not something buried in an employee handbook or induction course. 

5. Respond to Disclosures: Preparation involves not only preventing but also responding to disclosures of sexual harassment. Establish clear procedures for employees to report incidents, along with well-defined investigation protocols.

6. Document: And finally, employers should have a prevention plan. This ensures accountability and transparency in addressing sexual harassment issues.

At Relate Institute, we offer specialised training packages tailored to businesses of all sizes. From executive briefings on legal responsibilities to live workshops for staff, we equip every member of the company with the knowledge and skills necessary to effectively prevent and address sexual harassment.

Contact us for more information.