It’s 18 months since the legal obligation of positive duty was introduced into Australia’s Sex Discrimination Act 1984 (Cth), yet many organisations are still grappling with their role.   

As a key element of Australia’s Respect@Work framework, positive duty aims to reduce sexual harassment in the workplace. So why are many organisations experiencing an increase in reported incidents? 

“When an organisation takes action to prevent sexual harassment, employees may feel more comfortable coming forward with their experiences,” says Cameron Cranstoun, Health Safety and Environment Manager at Bayside Group. “Reporting incidences of sexual harassment is essential to identify causes and implement corrective actions.” 

An Australian Human Rights Commission report released just before the introduction of positive duty, found that over 40% of Australian women and 26% of Australian men had experienced workplace sexual harassment in just the previous five years. 

For employers, sexual harassment can be a reputational and financial risk to workplaces. Yet while a proactive approach to safety management in relation to physical hazards is generally supported and driven by leaders, many are struggling to address psychosocial hazards such as sexual harassment. 

What is the positive duty? 

The positive duty requires organisations and businesses (employers) to take ‘reasonable and proportionate measures’ according to Fair Work to eliminate the following behaviour as far as possible: 

• discrimination on the grounds of sex in a work context 
• sexual harassment in connection with work sex-based harassment in connection with work, conduct creating a workplace environment that is hostile on the ground of sex related acts of victimisation 

These behaviours can create significant harm to employees, teams and organisations. Yet historically, many instances of sexual harassment have gone unreported due to fear of retaliation or a lack of awareness about the appropriate reporting channels. 

Why are some organisations lagging behind? 

The most common reasons organisations may be reluctant to introduce new initiatives to address sexual harassment include: 

• Not knowing the next steps to take 
• Already have initiatives in place 
• Reputational concerns – what might be reported 
• Don’t have the capability to manage reports 

While some organisations already had proactive strategies in place to reduce sexual harassment prior to the changes in legislation, further action was required by many to comply. 

When it comes to physical injuries, it is common practice for organisations to encourage reporting all incidences minor or significant to aid in prevention. “Sexual harassment incidences should be approached similarly, as doing nothing will only exacerbate the problem over time,” Cameron says. “Incidences are often what you might expect, but not always - they can also be caused by over familiarity in the workplace and a lack of awareness about what constitutes sexual harassment.” 

However, doing nothing is not a viable option. According to Allianz Insurance, claims for workplace harassment and bullying increased by 61% between 2019 and 2023 as social norms shifted, with the majority of this increase occurring prior to legislative changes. 

How should companies address their obligations? 

There are many ways to implement a proactive approach to minimising sexual harassment in the workplace. A strategy at its core will need to focus on a few key areas: 

1. Leadership Commitment: Discrimination and gender inequality are the key drivers of workplace sexual harassment. Review your organisation’s gender diversity and look at strategies to reduce gender pay gaps. Organisational leaders trained on positive duty, sexual harassment and managing complaints will be equipped to respond more effectively. 

2. Review Policies: If your business didn’t make changes following the legislation announcement or conducted a rushed review of policies, it might be time to look closer at your policies and align them with your strategy. 

3. Assess the Risks: A psychosocial survey can help organisations identify areas for improvement by providing insights into employees' perceptions of the workplace environment, including issues related to harassment or discrimination. 

4. Training is Key: Whether or not you have conducted training on Respect@Work legislation, introductory and ongoing training is important. Training equips employees with the skills to confidently report incidents and understand the legal and ethical framework around sexual harassment. Regular training sessions on sexual harassment, discrimination, and respectful workplace behaviour, targeting relevant issues tailored to different organisational roles, will help to affect behavioural change. 

5. Establish Clear Reporting and Response Procedures: Training must be accompanied by clear procedures in place for reporting and responding to complaints of harassment and discrimination. These procedures should ensure that complaints are handled promptly, confidentially, and fairly. 

6. Monitor Compliance and Take Corrective Actions: Monitoring compliance with the Respect@Work legislation is also essential. Regular reviews will help identify issues and gaps, whether it be updating policies, providing targeted training, or ensuring consistency in taking disciplinary action against individuals who violate the company's policies. 

By taking these steps, companies can effectively address their positive duty under the Respect@Work legislation and create a safe, respectful, and inclusive workplace for all employees. This proactive approach not only helps to prevent unlawful conduct but also fosters a positive work environment where employees feel valued and supported. 

For workforce management assistance, contact Bayside Group today.