New Sexual Harassment Guidelines - Plus Psychosocial Safety Update and Tools to Meet the Employer's Duties

AHRC Guidelines

The Australian Human Rights Commission (AHRC) recently published its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) to demonstrate to Employers how to practically comply with its new obligations. These Guidelines will be used by the regulator from 12 December 2023, when they have statutory powers to undertake investigations, and enforce the positive duty.

Employers must ‘take reasonable and proportionate measures to eliminate relevant unlawful conduct as far as possible’, including sex discrimination, sexual harassment, sex-based harassment, hostile work environments on the ground of sex, and related victimisation.

The Guiding Principles

The Guidelines contain Guiding Principles will “help inform the decisions and organisation or business makes about what it needs to do in its own circumstances”. The Guiding Principles are:

• Consultation

  – using the usual approaches of consultation, cooperation and coordination applicable in WHS matters.

• Gender equality

  – a focus on achieving gender equality.

• Intersectionality

  – recognising the additional impact on different people particularly culturally and linguistically diverse or culturally and racially marginalised communities, and their socio-economic class.

• Person-centred and trauma informed

  – person-centred and trauma-informed approaches assist compliance and support healing.

The Seven Standards

The Standards address the following areas, which are expanded upon in the Guidelines. We encourage Employer to review the examples of practical ways provided by AHRC to achieve the desired outcomes:

• Leadership

• Culture

• Knowledge

• Risk management

• Support

• Reporting and response

• Monitoring, evaluation and transparency

Jurisdictional Differences

Unfortunately, WHS across Australia is not completely harmonised. Victoria is still not part of the harmonised jurisdictions and has its own regulations (not yet finalised but expected very soon). There are likely to be some specific additional requirements for Employers in Victoria which include: preparing written prevention plans for: aggression or violence, bullying, exposure to traumatic content or events, high job demands and sexual harassment and for employers with more than 50 employees providing a written report to WorkSafe Victoria (2 times per year) about reportable psychosocial complaints for aggression or violence, bullying, and sexual harassment and to keep a copy of the report for 5 years. Similarly the matters relating to sexual harassment are underpinned and complemented by differing state based equal opportunity and Anti-Discrimination legislation.

Recommended Approach – Best of the Best

Whilst the various differences in application of this duty amongst the jurisdictions are unhelpful to Employers from a compliance perspective, we recommend applying a generic approach adopting a ‘best of the best’ regardless of jurisdiction. This approach is more likely to place Employers in the ‘best practice’ category and should ease the administrative burden of multi-factor compliance.

Updated Risk Assessment Tool

To assist this process for our Retainer Clients only we have updated our earlier risk assessment tool which then flows into a prevention plan and reporting template. The tool is a broad based document and we consider provides appropriate coverage across the jurisdictional differences. It can be further tailored to meet the needs of each employer.

Training

We recommend all Employers commence their compliance journey by conducting refresher training as soon as possible.

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