Embracing the positive obligation to Tackle Sexual Harassment – 5 Control Measures for HR to Consider

Embracing the positive obligation to tackle sexual harassment in the workplace is another new challenge for Employers under the Sex Discrimination Act 1984 (Cth).

Employers and PCBUs have a positive duty to actively ensure that all forms of sex discrimination, sexual harassment, sex-based harassment, hostile work environments, and acts of victimization are eliminated as far as possible by taking reasonable and proportionate measures.  The specific actions necessary to fulfill this duty may differ and will be based on several factors. 

Just to make it clear, the express clause explicitly states that the positive duty does not impact any duty under WHS legislation such as those required to deal with Psychosocial Hazards and Risks.

Sexual Harassment Changes

The landscape surrounding sexual harassment has undergone significant changes, with laws and regulations changing.

Some relatively recent sexual harassment cases have included significant damages and compensation been handed down including:

  • Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 74 (9 March 2021) –
    • $158,702
  • Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126
    • $170,000
  • Yelda v Sydney Water Corporation; Yelda v Vitality Works Australia Pty Ltd [2021] NSWCATAD 107
    • $200,000
  • Oliver v Bassari (Human Rights) [2022] VCAT 329 (28 March 2022)
    • $150,000

Employers can no longer turn a blind eye they now have a positive obligation to tackle sexual harassment head-on.

The concept of a positive obligation means that employers are not only responsible for preventing sexual harassment but also for taking proactive steps to eliminate it from their workplace entirely. This duty extends beyond simply having policies in place; it requires employers to implement reasonable and proportionate measures to address and prevent such behaviour.

Sexual harassment is a form of workplace discrimination that involves unwelcome behaviour or conduct of a sexual nature. It can take many forms, including physical touching, suggestive comments or jokes, displays of sexually explicit images or videos, and unwanted advances. The key elements in determining whether behaviour constitutes sexual harassment is whether:

  • it is unwelcome conduct
  • sexual in nature
  • that a reasonable person would be offended, humiliated and/or intimidated

Positive Obligation to Tackle Sexual Harassment for Employers

The Sex Discrimination Commission has provided guiding principles and seven standards that outline what is expected of employers in fulfilling their positive duty.

On 12 December 2023, the Sex Discrimination Commissioner will have wide ranging powers to investigate and enforce compliance of the sexual harassment laws and it’s positive duty.

These include but are not limited to:

  • implementing policies and procedures,
  • providing training and education,
  • promoting reporting mechanisms,
  • conducting thorough investigations,
  • taking appropriate action against offenders, offering support to victims, and
  • regularly reviewing and updating policies.

The positive duty must be satisfied by the Employer and any PCBU as such vicarious liability for the actions of employees becomes relevant to consider. This can also cover the actions of labour hire staff, gig workers, volunteers or contractors.

Keep in mind that there are also other jurisdictions and different types of applications that might applicable such as:

Guiding Principles and The Seven Standards

To provide clarity and guidance, the Sex Discrimination Commission has outlined guiding principles that employers should follow when addressing sexual harassment. These principles are supported by seven standards that serve as a framework for employers to eliminate unlawful conduct.

The guiding principles are:

  • Consultation
  • Gender Equality
  • Intersectionality
  • Person Centred and trauma informed approaches

The first two are relatively self explanatory.

Intersectionality recognises that different aspects of a person’s identity intersect with and impact one another. There will be several factors that influence a person’s experience such as culture, sex or gender identity.

While prioritising the needs and experiences of individuals, it is important to note that being person-centred and trauma-informed does not necessarily equate to fulfilling every request made. It does, however, entail sincerely considering their desires and acknowledging the potential consequences of decisions on them.

The 7 Standards are:

  • Leadership
  • Culture
  • Knowledge
  • Risk Management
  • Support
  • Reporting and Response
  • Monitoring, evaluation and transparency

5 Control Measures for HR to Consider

To effectively address this issue, HR could consider implementing some control measures are here are 5 examples:

1. Develop and communicate clear sexual harassment policies: Establish comprehensive sexual harassment policies that clearly define what constitutes unlawful conduct and outline the consequences for offenders. Communicate these policies regularly to all employees to ensure they are aware of their obligations.  In particular, reminders in advance of work related events should be a genuine step taken on a consistent basis.

2. Provide training and education: Conduct regular training sessions on preventing sexual harassment, emphasizing respectful behaviour, bystander intervention techniques, and reporting procedures. Education is key to fostering a culture of respect and ensuring employees understand what is expected of them.  NB Employment Law have undertaken a number of sexual harassment focussed workshops and you can find more information about the session by clicking here.

3. Encourage open communication channels: Create an environment where employees feel comfortable reporting incidents or concerns without fear of retaliation. Implement confidential reporting mechanisms such as hotlines or anonymous suggestion boxes to encourage transparency.

4. Conduct thorough investigations: Promptly investigate all complaints of sexual harassment using impartial investigators who are trained in handling sensitive cases.  We would always recommend when it comes to sexual harassment complaints that a law firm with expertise in Employment Law is utilised to investigate sexual harassment so privilege can be obtained.  Ensure that investigations are conducted diligently, respecting privacy while gathering evidence necessary for fair decision-making. This should include being provided with an investigation plan, being updated regularly and being given an investigation report.

5. Take swift action against offenders: If an investigation reveals substantiated claims of sexual harassment, take appropriate disciplinary actions against perpetrators according to company policy or relevant legislation. This sends a strong message that such behaviour will not be tolerated within the organisation.

By implementing these control measures consistently, HR teams can help create workplaces free from sexual harassment while also complying with the positive obligation.

Check out our article, ‘4 Major Steps An Employment Lawyer Takes To Defend A Sexual Harassment Claim For An Employer’, for vital information on sexual harassment generally and the changes from a Fair Work Act perspective as well Sexual Harassment Changes: A Higher Responsibility For Prevention (And Elimination).

If you are an employer and need assistance or guidance on the new Sexual Harassment provisions NB Employment Law offer an obligation-free consultation and are happy to help.  Reach out via [email protected] or +61 (07) 3876 5111 to book an appointment.

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Written By

Jonathan Mamaril


NB Employment Law 

[email protected]

+61 (07) 3876 5111

About the Author

Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.

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[email protected] 
+61 (07) 3876 5111