The new Australian Positive Duty and what it means to you - Part 1: What is it and why it matters
Tym Lawrence
Sales / presales leader in software & services - strong background in digital transformation, data & AI, solution consulting & delivery and product management & marketing.
Introduction
It’s likely that everyone reading this has had some experience of a toxic workplace. Whether it’s a leader who encouraged bullying (as I have experienced) or incidents of harassment based on race, gender or other characteristics. With this in mind, I believe it's essential to shine a light on a transformative shift happening in Australia.?
The Australian Human Rights Commission's Respect@Work report from 2020 has ushered in a new era of responsibility and accountability. With the advent of pioneering legislation that came into force in December 2022, organizations now have a Positive Duty to take proactive steps to eliminate sexual harassment and discrimination.?
I want to examine this new Positive Duty, over three articles:
Disclaimer: While I am providing consulting services to RepSafe Pty Ltd, this article was written in my private capacity and does not represent the views or opinions of that, or any other, company. This article should not be taken as legal or other professional advice.
The Roots of Change
The journey to the positive duty began amidst the #MeToo and related movements, that gained international awareness in 2017. This major cultural shift sparked a global conversation about sexual harassment and gender inequality. In June 2018, Australia's Sex Discrimination Commissioner, Kate Jenkins, launched a national inquiry into sexual harassment in Australian workplaces.
The urgency for change was backed up by the Australian Human Rights Commission's 2018 national survey , that revealed that one in three people experienced sexual harassment at work over a five-year period. It was a clear indication that the existing legal and regulatory framework was no longer fit for purpose.
In March 2020, the Respect@Work report was released, introducing a new model that was evidence-based, victim-focused, and framed through a gender and intersectional lens. These recommendations (particularly 16, 17, 18, 19, 23 and 43) paved the way for legislative reform , leading to the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act.?
This Act, which I’ll simply refer to as the Respect@Work Act, amended the Sex Discrimination Act 1984, and added the positive duty on employers and Persons Conducting a Business or Undertaking (PCBUs) to eliminate workplace sex discrimination and harassment, categorizing it as 'unlawful conduct.'?
This landmark legislation officially took effect in December 2022, and gives Australian businesses until December 2023 to comply or face penalties and reputation damage.
Unpacking the Positive Duty
Let's take a step back and clarify what the positive duty entails.
In simple terms, the positive duty mandates that employers, businesses, and organisations must take 'reasonable and proportionate' steps to eliminate unlawful conduct in the workplace as much as possible.?
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This shift from a reactive to a proactive approach requires actively preventing workplace harassment and discrimination, rather than responding only after an incident occurs.
Implications for Businesses
It's essential to emphasise that these obligations apply universally, irrespective of an organisation's size or resources. Small businesses are not exempt.?
Failure to comply with the Respect@Work Act can result in significant consequences . Employers may be held liable for incidents of harassment or discrimination in the workplace, leading to uncapped financial penalties and damages under the Sex Discrimination Act, as well as fines exceeding $1.5 million under the Work Health and Safety Act.
A Nine-Month Reality Check
As this legislation has been in place for over nine months now, it's crucial to assess its impact. Have workplaces and employees witnessed significant changes? Unfortunately, it seems that the tide of scandals and misconduct continues to flow across various sectors.?
Even before the legislation, we had witnessed stories of toxic workplaces in organisations as diverse as the Australian Federal Parliament, NSW Parliament, NSW Labor party, Opera Australia and Sony Music.??
Regrettably, it appears that not much has changed, with recent reports of ongoing bullying, harassment, and assault surfacing in sectors such as health, education, defence, and consulting.
For example, just recently, in late July 2023, the Sydney Morning Herald reported on a culture of bullying, racism and sexual harassment in the large consulting firms . In July, an independent review of EY’s workplace culture found that 15 per cent of current and former female employees had experienced sexual harassment over the past five years, and that 17 per cent had been bullied.
Wrap up and Part 2
In this first part, I've looked at some of the reasons why the new laws were introduced, as well as noting that they apply widely and can have stiff penalties. Alas, nine months in, there’s still a lot of work to do.
In Part 2 , I'll look at the seven standards and explore what businesses should do to prevent and respond to incidents of unlawful conduct.?
In the meantime, if you want to learn more, here are some useful links.
Great post Tym, it’s so important that we champion this change and support businesses in meeting their new obligations whilst educating them and their employees at the same time #positiveduty #RespectAtWork
I help bridge the gap between HR and their technology
1 年Super helpful guide Tym - Can't wait for the next 2 parts
Managing Partner - DDSN Interactive, Acora CMS | CEO - RepSafe | PhD MAICD
1 年Fantastic summary Tym. Great to have you champion this change and to have you as a part of the RepSafe team
Public sector professional with a technology and customer focus, and geospatial mentor
1 年Thanks for writing and sharing Tym on this important topic in today's world.