Dealing with the positive duty to prevent sexual harassment

Dealing with the positive duty to prevent sexual harassment

Latest News & Events

Dealing with the positive duty to prevent sexual harassment

money changing hands
As people will be aware, there has been a huge amount of publicity on the subjects of sexual harassment and gender inequalities in recent times and there are significant changes that have happened or are about to happen in multiple jurisdictions.

Arrival of positive duties

One of those changes is the relatively new positive duty to prevent sexual harassment, sex discrimination and gender-based behaviours which became enforceable under the Commonwealth “Sex Discrimination Act 1984” in December 2023.

The Australian Human Rights Commission has compliance and enforcement powers whereby it can enter workplaces for inspections, interview staff and initiate prosecutions for breach of that positive duty.

We have also seen new positive duties to eliminate or control risks associated with psychosocial hazards which include sexual harassment and gender-based behaviours become operative in most States and Territories of Australia under Workplace Health and Safety laws. It has recently been announced that this will happen in Victoria late this year and there is already a panel of Psychosocial Hazard Worksafe Inspectors operating in Victoria.

What difference do positive duties make?

The traditional approach to dealing with such issues as sexual harassment has been to have a policy to express commitments, procedures for dealing with issues and training to educate people on expectations and then to act on any complaints or breaches reported.

That has proven to be ineffective in preventing sexual harassment.

The positive duty means that organisations now have to conduct risk assessments to determine whether there are any hazards that give rise to risks of sexual harassment and related behaviours and, if there are any such hazards, to implement appropriate control plans, much as has been required for physical WHS risks for many years.

Risk factors in construction

Here are some of the risk factors that are featured in publications by the AHRC:

·       most of your workers are men

·       most of the supervisors or managers in your workplace are men

·       your business involves interacting with third parties (such as clients, customers and/or others)

·       you employ casual staff and/or workers on short-term contracts

·       your workplace is very hierarchical

·       your workplace lacks diversity

·       your workplace is isolated or remote

·       your workplace is divided by gender (for example, women in the office, men ‘on the tools’)

·       alcohol is consumed, especially at work social events

·       you and/or your staff do not understand sex discrimination, sexual harassment, and other unlawful behaviours

·       disrespectful behaviour is generally accepted or common in your workplace

·       you don’t have a policy or code of conduct which sets expected standards of behaviour

·       you have not responded appropriately or held people accountable for unlawful behaviours in the past (or have not applied a policy or code of conduct consistently).

How many of those risk factors are present in your workplace? If you are in civil construction, probably most of them.

The Australian Human Rights Commission Framework

The AHRC has developed a set of 7 standards for complying with the positive duty in preventing and responding to sexual harassment and related behaviours and these are:

1.    Leadership

2.    Culture:

3.    Knowledge

4.    Risk management

5.    Support

6.    Reporting and response

7.    Monitoring, evaluation and transparency

There is some excellent guidance material available at https://humanrights.gov.au

The Leadership Standard

Of those 7 standards, the one that has been called out as the most important is “Leadership” because that is where it all starts.

The standard describes the leadership responsibilities as follows:

1.     Senior leaders understand their obligations under the Sex Discrimination Act and have up-to-date knowledge about relevant unlawful conduct.

2.     Senior leaders are responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented. Senior leaders regularly review the effectiveness of these measures and update workers.

3.     Senior leaders are visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality. They set clear expectations and role model respectful behaviour.

‘Senior leader’ refers to any person with responsibility for the management and governance of the organisation or business.

In a small organisation or business, this will usually be the owner and any manager.

In larger organisations and businesses, this will usually include the board (or equivalent), chief executive officer (CEO), executive leadership team (ELT), partners or executive manager.

Senior leaders hold ultimate responsibility and accountability for the governance and legal compliance of their organisation or business.

They are responsible for their own actions, the actions of those who they lead and influence, allocation of resources, oversight of compliance and shaping the broader workplace culture.

They set the ‘tone from the top’ – meaning that what they say and do gives a strong message to workers about what is acceptable, important and valued.

What the Australian Institute of Company Directors has to say

The Australian Human Rights Commissioner called on the AICD to help in education of directors about sexual harassment, its drivers and things that they need to be doing to meet their duties as directors in this context.

The AICD has developed: “A director’s guide to preventing and responding to sexual harassment at work”. In essence, it follows the 7 standards published by the AHRC. It also notes some really important questions that Boards should be considering including:

·       Do all directors have an adequate understanding of workplace sexual harassment and its drivers?

·       Are you confident directors’ personal communication styles and behaviour model the desired culture?

·       Do you discuss this at board level?

·       Are you comfortable that the board understands the dynamics and prevalence of sexual harassment in the organisation and how it relates to the organisational culture?

·       Does the board, or relevant board committee, consider workplace sexual harassment risks in overall risk management and governance?

So, you can see that the expectations of senior leaders go a long way beyond just putting policies in place – they need to be leading from the front and that starts at board level.

The Queensland development

From 1 March 2025, if a risk has been identified, employers must also implement a comprehensive, written prevention plan that identifies risks, control measures for managing these risks if elimination is not practicable and the process for consulting with employees during its development.

Employers will need to consider specific worker, workplace and work environment characteristics, such as lack of diversity or isolated work, which may heighten the risk of sexual harassment and sex or gendered-based harassment occurring in their workplace.

In essence, this means that any business needs to conduct a risk assessment in line with regulations and the Code of Practice and develop a control plan on how each identified risk will be mitigated.

This applies to all Persons Conducting a Business or Undertaking which has people working in Queensland.

New jurisdictions at the Fair Work Commission

The FWC has been able to issue stop sexual harassment orders for some years, but it isn’t a jurisdiction that saw a lot of activity for the simple reason that, unless the alleged perpetrator was still working in the organisation, there was essentially nothing to stop, and often cases could fail to result in any action on jurisdictional grounds.

If the alleged sexual harassment happened after 6 March 2023, the FWC can also conciliate on sexual harassment disputes and either issue a certificate to allow a court application to proceed or arbitrate itself and has powers to award compensation among other things. 

Conclusion

The challenge starts with senior leadership in our organisations which means, in an industry such as ours, it predominantly starts with the men in those senior leadership roles, whether on boards or executive teams in larger organisations or business owners and managers in smaller ones.

And the process starts with understanding the truths about sexual harassment and gender-based behaviours, what drives them and what impacts they have on people plus what your obligations as a senior leader involve.

Beyond that, it is playing your part individually and collectively to drive the cultural change that is necessary to make the industry a psychologically and emotionally safe place for people and women in particular.

Who is up for that challenge?

This article was originally produced for CCF Victoria’s Bulletin publication.

Please call us on 0438 533 311 or email enquiries@ridgelinehr.com.au if you want to explore how we might be of assistance.

 

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

What are the big HR issues for SMBs in 2025?

What are the big HR issues for SMBs in 2025?

Latest News & Events

What are the big HR issues for SMBs in 2025?

money changing hands
Hey everyone, 2025 is already shaping up as another big year of legal change so we are running a free webinar to give you the heads up on what the big issues are this year. 
Headlining that list is the new criminal offence of wage theft and the Voluntary Small Business Wage Compliance Code that became operative from 1 January. 
But there is lots more with changes already happening with a number of awards, people being able to prosecute unfair contract claims next month, the new positive duties regarding psychosocial hazards and sexual harassment to really kick in plus more to talk about.
Joining me to discuss all of that is the wonderful Jessy Warn from HR Gurus who are specialists in helping SMBs with PEOPLE STUFF with NO FLUFF.
They have just celebrated their 15th birthday so they aren’t new kids on the block – they know their stuff.
See you there.

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Has the penny dropped for you?

Has the penny dropped for you?

Latest News & Events

Has the penny dropped for you?

example flexible working arrangement

One of the most significant changes that has been introduced in the last few years is the new “positive duty” standard of compliance relative to sexual harassment, gender-based behaviour and psychosocial hazards. Current signs suggest that the “penny hasn’t dropped” with lots of organisations about what this really means. Has it dropped with you?

A positive duty means that we have to do things differently

Positive duties have been introduced for 3 reasons:

  1. We have real problems in our workplaces with mental health issues associated with psychosocial hazards and harm caused primarily to women by gender-based behaviour such as sexual harassment
  2. The existing “risk management” model of compliance commonly used by organisations doesn’t work and, in many cases, not only doesn’t help but aggravates the harm and
  3. It is not sustainable in terms of the harm caused to people and the associated costs in lost productivity and escalating health costs.

You see, putting out policies, telling people that they have to follow them and running education sessions on respect at work just isn’t enough.

We have been doing that for decades with issues like bullying and sexual harassment but have they made any real difference where it matters ie in changing behaviour so that they don’t happen in the first place? 

The simple answer to that is “no” as evidenced by the fact that these positive duties have been imposed because we need to do things differently. 

A timely reality check

Former Federal Sex Discrimination Commissioner, Kate Jenkins, conducted the national enquiry into sexual harassment which resulted in the Respect@Work Report,  introduction of the positive duty to prevent sexual harassment, victimisation and gender-based behaviours.

In an article on HR Daily, Ms Jenkins is reported as saying that:

  • many workplace managers told the inquiry that they were tackling sexual harassment through a policy, some training and a complaint procedure
  • organisational processes were primarily a defence mechanism
  • the focus of workplace leaders wasn’t on preventing sexual harassment but preventing complaints
  • for those who are trying to make people more comfortable complaining, her message was “if your focus is on asking people to complain about psychosocial hazard concerns, then your focus is not on preventing them”
  • Leaders should be asking why harassment is occurring and what can we do to change this
  • Of the 7 compliance standards in the Respect@Work Guidelines, leadership is the most important.

What she is essentially saying is that it is about action to change behaviour and that starts with commitment and action from the top. It is about making it real in your workplace culture and not just words in a policy or training session.

Has the penny dropped?

What should you do

Unfortunately, what we are seeing is a “risk management response” from most organisations and HR/WHS Consultants – they are writing new policies, running education sessions and telling people to behave which just perpetuates the problems that the positive duty is intended to address. Clearly, the penny hasn’t dropped.

As with any matter around people and culture, we encourage you to look at these things on 3 levels – organisational, team and individual – and please do that by engaging with your people in determining what the realities for your business and people are and covering off all of the bases. 

Remember it is about your business and your people so don’t just borrow or buy a policy statement from someone else and remember our 4C compliance model because unless you do all 4Cs, you are not truly compliant:

  • Commitment – the fundamentals that deliver purpose and compliance
  • Capability – the tools and systems that enable good people practice
  • Competency – the skills and knowledge that deliver positive outcomes for businesses and people
  • Culture – the integration of all of that to deliver everyday employee engagement and high performance.

We can help

We developed our 4C compliance model 20 years ago and that is how long we have been practising to that standard so it isn’t new for us. We could say that the law has caught up now but the truth is that, while positive duties have brought the flaws in the existing compliance models into sharp focus, we have known that they have been there all along.  

And that is because what we are dealing with is PEOPLE BUSINESS – it is about people and relationships.

We have put together blogs and accompanying explainer videos on each of the 14 psychosocial hazards in the Model code for managing psychosocial hazards at work published by Safe Work Australia. One of those covers sexual harassment. They are designed to give businesses an understanding of the sorts of questions you should be asking in your workplace to identify any issues that you might need to address. You can access them for free on the News Events page on our website and we encourage you to use them to do a preliminary risk assessment.

If you would like to learn more about ways that we help with this or any other HR issue, please call us on 0438 533 311 or email us at enquiries@ridgelinehr.com.au.

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

New workshops – understanding psychosocial hazards

New workshops – understanding psychosocial hazards

Latest News & Events

New workshops – understanding psychosocial hazards

example flexible working arrangement

The introduction of the new positive duty to eliminate or control psychosocial hazards casts a whole new perspective on what organisations need to do to be compliant with their legal obligations and be seen to manage this duty  responsibly. It really does require a significant shift in mindset and an overhaul of how you manage policies, processes, practices and people.  

Background

At Ridgeline HR, we developed our 4C compliance model 20 years ago and it really does stand up when you look at what a positive duty requires. It is much more than just putting out a policy, telling people they have to comply with it and reacting to resolve any breaches or complaints.

That is because we have always believed that the key PEOPLE FACTORS that SMBs have to get right are the quality of relationships and the behaviour of their people. They are very much in focus under the positive duties. 

So we are well versed in all of this stuff.

Our Workshops

We are offering organisations the opportunity to leverage our experience and knowledge in this space via engaging and practical workshops for your leadership team or your consultative/safety committee or other representative body.

The workshops which run for 3 hours are highly interactive and designed to engage participants in the process of developing an appropriate and effective organisational response to the introduction of the positive duty.

 Learning outcomes

 Participants will gain:

  • Knowledge of what the psychosocial hazards are and why they are psychosocial hazards
  • A practical awareness of the questions that organisations need to be asking with respect to each of the psychosocial hazards and how risks associated with psychosocial hazards can manifest in workplaces through policies, processes, practices and people.
  • An understanding of how multiple psychosocial hazards can be in play and compound risks.
  • An appreciation of the value of recognising organisational strengths as well as areas for improvement and the difference that approaching this with a positive mindset can make.
  • An introduction to our purpose designed HEART framework for implementing an effective psychosocial hazard control plan with your people. 
  • A practical start on developing your own organisational Psychosocial Hazard Risk Control Plan.

Options

We can deliver this workshop in person or online.

We can also provide a number of ancillary services such as:

    • Our Better Workplace Projects where we take a deep dive into your organisation having conversations with a representative cross section of your people to identify strengths and opportunities for improvements
    • Conducting surveys of your people using the best practice PERMAH Workplace Wellbeing Survey and/or its companion psychosocial hazard survey and unpacking the results with you
    • Setting up, training and facilitating your own Better Workplace Team to really take hold of the well-being agenda in your workplace and collaboratively drive improvements
    • Helping to redesign and reposition your People and Culture policies and procedures to align with your new positive duty obligations 

 Contact us using the “Tell us what you need help with” form below to arrange your session.

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Using PERMAH for your POSITIVE DUTY

Using PERMAH for your POSITIVE DUTY

Latest News & Events

Using PERMAH for your POSITIVE DUTY

example flexible working arrangement

Above image is courtesy of The Wellbeing Lab/Michelle McQuaid Group.

 

Background

Under Workplace Health and Safety laws, a positive duty to eliminate or control psychosocial hazards has been imposed on all persons conducting a business or undertaking.

This means that the traditional compliance approach of issuing a policy and procedures, providing them to workers, requiring their compliance with them and acting on incidents or breaches when they are reported is not adequate any more.

It is necessary to conduct a thorough risk assessment to see whether any risks from each of the 14 psychosocial hazards in the Model code for managing psychosocial hazards published by Safe Work Australia and as set out in legislation enacted by each State or Territory.

There is also a duty to consult workers at each stage of the process and especially in relation to identifying risks and designing and implementing control plans and measures. 

One way to start addressing both the risk assessment and consultation obligations is to survey workers with an appropriate survey instrument. Our choice to do that is the PERMAH Workplace Wellbeing Survey.

Why have we chosen PERMAH?

The PERMAH workplace wellbeing framework is based on the ground-breaking wellbeing theory developed by Professor Martin Seligman as published in his celebrated work “Flourish”.

The PERMAH survey tool has been used by the Australian Human Resources Institute since 2018 as a national workplace wellbeing benchmarking tool and Small Business Victoria as the centrepiece of its small business wellbeing programs.

A unique feature of the PERMAH Survey is that every person who does the survey gets their own individual State of Wellbeing Report plus a template for developing a wellbeing plan plus access to a heap of wellbeing resources….all for free.

Organisations with 30 or more employees can acquire an annual licence and obtain organisational reports which show the aggregated findings on wellbeing in the organisation through the eyes and experiences of its people.

We have a team of people who have undertaken Certificates in Creating Wellbeing and in Leading Psychological Safety and Care and are accredited to debrief people on their PERMAH Survey results.

With the advent of the positive duty to eliminate or control psychosocial hazards, the survey has been augmented with a panel of additional questions specifically related to each of the 14 psychosocial hazards detailed in Safe Work Australia’s model code.

So we believe that the PERMAH Workplace Survey with the Psychosocial Hazard Panel Add-on ticks all of the boxes – it is science-based, it has credibility being used nationally by AHRI, it is affordable, it provides free and practical wellbeing advice and resources to everyone who does it and it addresses the psychosocial hazards in a practical and cost effective way.

How we can we help

Our “Using PERMAH for Positive Duties” service incorporates the following elements:

  • A 12 month licence for the PERMAH Workplace Wellbeing Survey including the add-on psychosocial hazard panel.
  • Ability to undertake the survey as an organisation multiple times during the licence period.
  • Templates and an animated video for communications to employees on the PERMAH Workplace Wellbeing Survey, why your organisation is doing it and how employees can participate.
  • Professional analysis of survey results, provision of a supplementary report and management debrief on the results.

We have the flexibility to package these elements in a variety of ways and to undertake other services such as individual PERMAH debriefings, training programs and facilitated sessions with leadership groups or consultative or safety committees.

Where to now?

If you would like to learn more about the positive duty to eliminate or control psychosocial hazards and your options for addressing it, we’ll be happy to advise you. Just give us a call on 0438 533 311 or email enquiries@ridgelinehr.com.au.

 

 

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH

Managing disconnection from work

Managing disconnection from work

Latest News & Events

Managing disconnection from work

example flexible working arrangement

The impending legislated right for workers to disconnect from work outside their contracted working hours has the usual subjects again yelling that “the sky is falling” on employers.

The thrust of the proposed changes is to discourage employers from making unreasonable contact with or demands on their employees outside their contracted working hours, to provide for people to be paid for time worked outside their contracted working hours and to have access to the Fair Work Commission to make their employer stop making unreasonable connection with or demands on them outside their contracted working hours if the Commission finds the employer to be doing so.

There will be exceptions such as if the contact is due to an emergency or for welfare purposes. People who have roles that require them to be on call as a normal feature of their job won’t be an issue as long as the connection is reasonable in that context.

It has also been made clear by the Minister that it would be reasonable to contact relevant employees if a worker did not attend work and the employer needed someone to take their place or for normal rostering purposes.

Of course, if the contact is unreasonable, that might well constitute an unreasonable job demand in any case and therefore constitute a risk arising from a psychosocial hazard under Workplace Health and Safety laws.

Do you need to contact your employees outside their contracted working hours?

For the vast majority of workplaces, the answer is probably “no, other than in the case of an emergency or for welfare purposes” – just what the proposed legislative change says.

Sure, there will be times when you are working into the night and want to get an email off to an employee for their  attention when they come in in the morning ….. but you don’t need them to see it tonight so either delay sending it until the morning or use the scheduling facility on your email service for it to automatically go to the employee’s inbox at the start of their day in the morning.

It really is that easy to manage in most cases.

What about if the employee wants a flexible working arrangement?

One of the arguments that the naysayers are putting up is that this right to disconnect will adversely affect employers’ willingness to offer flexible working hours or hybrid working arrangements.

One of the things that should be covered off in the discussions and agreement about a flexible working arrangement is how communications and connection are going to be managed by the employer and the employee.

For example, let’s say a single mum who is an accounts clerk asks for a flexible working arrangement under which she would work from 9.30 am to 2.30 pm each day and from 8.00 pm to 9.30 pm each night so that she could manage her parental responsibilities in the morning up to school drop off time and from school pick up time through to the children’s bedtime. She might come into the office in the day and do the night work from home.

The arrangement with the night work might be that she can perform tasks which do not require interaction with others (eg data entry, accounts processing, etc) but that anything requiring contact with another person is to be done either by a scheduled email issuing the following morning or deferring that item until she came into the office the next day. 

You should Include that communications protocol in the flexible working arrangement agreement to ensure that it is understood and complied with.

And guess what? That pattern of hours of work becomes that employee’s contracted hours of work so there isn’t an issue of a need for that employee to disconnect in any case because they are working.  

Again, it really is that simple to manage in most cases.

Do you really want to be contacting your employees outside their contracted hours?

Because we live in such a digitally connected “look at it now” world, if you send something to an employee outside their contracted working hours, there are many who will not be able to resist having a look.

If, by having a look, that raises something for them that creates some level of anxiety and that in turn interferes with their state of mind and/or their sleep and/or their leisure time/rest and recovery and/or the relationship with their partner……..well, do you really want an anxious, tired, sleep deprived employee coming into work the next day?

The answer should be self-evident.

Other considerations

As noted above, a failure to ensure that there is no unreasonable connection with employees outside their contracted working hours could give rise to risks associated with psychosocial hazards and Workplace Health and Safety laws require employers to exercise a positive duty to eliminate or control such risks. There are a number of psychosocial hazards that could come into play in this regard. We have a blog and explainer video on each of the 14 psychosocial hazards on our website – you can access them here

Additionally, the Fair Work Commission has just begun a review of modern awards with respect to “Work and Care” and the issue of disconnection from work will no doubt be a prominent issue in considerations in that review. See https://ridgelinehr.com.au/award-review-on-work-and-care-underway/

We will keep you informed of further developments as they occur and ensure that we tell you what the real effects of legislative changes are rather than what the scaremongers would have you believe.

If there is anything here that resonates with you and you would like to explore further, give us a call on 0438 533 311 or email enquiries@ridgelinehr.com.au. We would love to have a chat about it.

 

 

 

 

CONTACT US

Ridgeline Human Resources Pty Ltd
ABN : 24 091 644 094

enquiries@ridgelinehr.com.au

0438 533 311

PARTNER LINKS

TELL US WHAT YOU NEED HELP WITH