The New Positive Duty - Workplace Sexual Harassment

By Daniel MacMahon

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The new positive duty – workplace sexual harassment

 

On 12 December 2023 changes to the Sex Discrimination Act 1984 (Cth) commenced under which employers now have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible:

 

1. sex discrimination;

2. sexual harassment or harassment on the ground of sex;

3. hostile workplace environments on the ground of sex; and

4. related acts of victimisation.

 

Relevantly, the threshold for what constitutes harassment on the grounds of sex has been lowered to include any unwelcome conduct of a demeaning nature in relation to the person harassed. The AHRC will have the power to inquire into and assess compliance with the new duty (including by way of issuing compliance notices), and make federal court applications to direct compliance.  

 

The new positive duty to eliminate workplace sexual harassment is separate to, and in addition to, an employer’s statutory obligations to appropriately manage workplace sexual harassment as a psychosocial hazard under work health and safety (WHS) laws.

 

Managing psychosocial risks

 

If you are an employer, you may be unsure of your statutory WHS duty to appropriately identify and manage psychosocial hazards and risks in the workplace. Here’s a quick guide:

 

What is the WHS duty?

 

In most Australian jurisdictions (including NSW), a person conducting a business or undertaking (i.e., most employers), must take positive steps to, so far as is reasonably practicable, eliminate or minimise WHS risks arising from the conduct of their business or undertaking, to the extent they have influence or control (practically and contractually) over relevant safety matters.

 

The duty, which arises under the Work Health and Safety Act 2011 (NSW) (WHS Act), extends to managing both physical and psychosocial risks to health and safety.

 

What is a psychosocial risk?

 

At a high level, a psychosocial risk is a risk to health and safety arising from a reasonably foreseeable psychosocial hazard (including sexual harassment), in the workplace. Psychosocial hazards at work are aspects of work and situations that may cause a stress response, which in turn can lead to psychological or physical harm. These stem from:

 

• the way the tasks or job are designed, organised, managed and supervised;

• tasks or jobs where there are inherent psychosocial hazards and risks;

• the equipment, working environment or requirements to undertake duties in physically hazardous environments, and

• social factors at work, workplace relationships and social interactions.

 

Examples of psychological hazards include poor support from supervisors and managers, role overload, role underload, role conflict or lack of role clarity, bullying, and harassment (including sexual harassment).

 

Tips for employers

 

If you are an employer, it’s recommended you conduct a risk assessment (in consultation with relevant workers), which identifies reasonably foreseeable psychosocial hazards and risks in the workplace and, in turn, identify and implement controls (including policies, procedures and systems of work) to properly manage the identified hazards and risks. Further guidance (including on control measures) can be found in SafeWork NSW’s Code of Practice: Managing Psychosocial Hazards at Work.   

 

Failure to comply with the WHS duty can, and does, lead to criminal prosecution for breaches of the WHS Act, resulting in maximum fines of up to $3.99m (for a body corporate) and 5-year prison sentences (for individuals).