Sex Discrimination Act: the positive duty and work, health and safety duties – some initial guidance and thoughts

By Nicholas Beech

The Australian Human Rights Commission has issued Guidelines that set out the steps that the Commission expects employers and PCBUs to take to comply with the new positive duty under the Sex Discrimination Act 1984 (SD Act). Particularly, the Guidelines refer to four Guiding Principles and seven Standards. The Standards cover leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency.

The Guidelines include guidance on matters that relate to and interact with the duties under the model work, health, and safety laws (model WHS Laws).

We examine below some of the guidance and Standards.

Concurrent operation of positive duty and WHS duties

• The changes to the SD Act expressly state that the positive duty is intended to operate concurrently with the model WHS Laws.
• Under the model WHS Laws, persons conducting a business or undertaking (PCBUs) have a duty, so far as is reasonably practicable, to eliminate or minimise risks to workers’ physical and psychological health arising from psychosocial hazards, including sexual harassment (WHS Duty).
• The Guidelines do not provide specific guidance on how to achieve compliance with the WHS Duty.
• The steps that may be taken to comply with the positive duty under the SD Act are likely to be actions which will help meet the WHS Duty. However, satisfying the positive duty under the SD Act may not necessarily ensure the WHS Duty is met and different or additional steps beyond those discussed in the Guidelines may need to be taken to comply with the WHS Duty.
• Similarly, satisfying the WHS Duty may not equate to compliance with the positive duty under the SD Act.

Positive duty and senior leaders – Standard 1 under the Guidelines

• As part of this Leadership Standard, senior leaders should understand their obligations under the SD Act, have up-to-date knowledge about relevant unlawful conduct and are responsible for ensuring appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers, implemented, and reviewed.
• A ‘senior leader’ refers to any person with responsibility for the management and governance of the PCBU or employer.
• Senior leaders may be ‘officers’ under the model WHS Laws. An officer includes a director or secretary of a body corporate PCBU and a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the PCBU.
• Officers have specific duties under the model WHS Laws to exercise due diligence in the management of psychosocial hazards and risks, including sexual harassment and can be criminally liable for failing to fulfil this personal duty.
• The due diligence duty on officers may require them to take further steps, beyond what is required by Standard 1, to ensure the due diligence duty is met.

Risk management – Standard 4 under the Guidelines

• Risk management is a standard part of running any organisation or business. It is a requirement under the model WHS Laws and should form part of the ‘prevention and response plan’ that a PCBU or employer develops for satisfying the positive duty in the SD Act.
• In undertaking risk assessment processes and determining appropriate control measures, consideration should be given to the duration (how long a person is exposed to the risk), frequency (how often a person is exposed to the risk) and severity (level of seriousness) of the risks identified. Taking this approach enables a PCBU or employer to determine which risks should be prioritised when implementing appropriate control measures. More severe risks to health and safety warrant additional attention and measures.
• PCBUs and employers should review relevant WHS guidance on control measures, including Safe Work Australia’s Model Code of Practice for Managing Psychosocial Hazards at Work.

There have been previous statements and comments made, including in the Explanatory Memorandum (EM), to the introduction of the positive duty, that the model WHS Laws had been largely ineffective in relation to sexual harassment, and had focused on physical harm with psychological risks receiving less attention. That position has largely been reversed with the recent introduction of specific duties under the model WHS Laws applicable to the identification, assessment, and control of psychosocial risks, which expressly include sexual harassment.

With these changes it may now be more accurate to say, as also stated in the EM, that while the model WHS Laws and the SD Act use alternative language to describe the obligations on PCBUs and employers, the conduct required for compliance is anticipated to be the same. But even that comment needs to be approached with caution and it remains important for PCBUs and employers to carefully consider its duties under both frameworks to ensure the nuances of each are fulfilled.

The guidance provided in Standard 1 and how the duty on senior leaders operates alongside the duty on officers also needs to be carefully considered. Although there is a degree of overlap with some of the obligations referred to in Standard 1 and the elements of the due diligence duty, the nature and scope of the obligations on senior leaders is new and yet to be examined or tested.

There are clear similarities between the risk management approach suggested under Standard 4 and the approach needed to be undertaken under the model WHS Laws. The factors identified in the Standard to be considered when assessing risks and determining appropriate control measures are aligned with those that are now prescribed or best practise under the model WHS Laws for psychosocial risks.

Going forward

The Commission will have the power to enforce compliance with the positive duty from 12 December 2023. Therefore, PCBUs, employers and their senior leaders should take prompt action to review the Guidelines and ensure the necessary systems are in place or updated to achieve specific compliance with the positive duty under the SD Act while also being mindful that they are meeting relevant WHS duties.