Is your organisation ready to comply with the positive duty?
From 12 December, the Australian Human Rights Commission (AHRC) has new powers to investigate and enforce the positive duty on employers to eliminate, as far as possible, sexual discrimination and harassment from taking place at work.
Just in time for end of year party season.
This is a consequence of the legal reforms known as Respect@Work, which, along with other workplace protections, including work health and safety (WHS) laws, make discrimination based on sex and sexual harassment that occurs in connection with work unlawful conduct.
An offsite work Christmas event still constitutes a workplace by law.
Training is fundamental for ensuring compliance with the Respect@Work reforms
Earlier this year, the AHRC developed guidelines to help organisations and businesses comply with this positive duty. Significantly, it cites education and training (under the banner of ‘knowledge’) as a key standard in ensuring compliance.
So as Christmas songs play in our shopping aisles, now is the time to train staff on the Respect@Work reforms, reasserting standards of acceptable conduct and empowering people to be upstanders not bystanders in the event they witness or overhear misconduct.
Workplace behaviours training should be like Mariah’s Christmas song: an annual habit. But training on this topic needs to be appropriately robust because the topic is important and the penalties for failing to comply are severe. Employers cannot afford for their staff to mindlessly tune out of the content.
All we want for Christmas – and all year round, for that matter – is respect.
A new focus on culture requires appropriate training
The AHRC’s Guidelines place a special emphasis on workplace culture, noting that workplace compliance with the positive duty goes beyond prevention of discrimination and harassment at work towards building cultures of respect. It’s not just about not having a hostile workplace, the focus is on creating an inclusive one.
Many organisations and businesses will likely struggle to know where to begin. Some employers will wonder how to turn this focus on culture into practical, actionable steps. They may be shocked by the sheer volume of sociocultural detail that has gone into the AHRC Guidelines, and indeed in the Respect@Work laws themselves. They will baulk at terms such as ‘intersectionality’ and a ‘trauma-informed’ approach.
Where do you even start? Start here!
But while the concept of culture may need demystifying for some, it is arguably the first thing organisations and businesses can work on in order to comply with the positive duty. The good news here is that the culture piece, while it seems forbidding to many, can be broken down into some straightforward actions.
Key themes within the AHRC’s Guidelines are that the leaders of organisations and businesses should:
- acknowledge and commit themselves to the positive duty
- empower HR to embed compliance with the positive duty in its processes
- provide adequate training to staff so that they know their rights and responsibilities to each other, and are aware that some people are at higher risk of discrimination than others due to different characteristics that make them minorities or otherwise vulnerable to disadvantage
Cultural embedment is fundamentally about delivering regular communication and training from the top down and between peers. But communication and training need to be appropriate to the task. It is no longer enough for workplace behaviours training to simply focus on preventing or managing incidents of bullying, discrimination and harassment at work. To be truly robust in addressing the pressures of today’s laws and the expectations contained in the AHRC’s Guidelines, it needs to cover topics such as diversity and inclusion – and indeed respect.
“Practising diversity and inclusion goes beyond adhering to formal policies and strategies. It is about how we work together and treat each other with respect.” – GRC Solutions’ Workplace Behaviours course
The AHRC’s Guiding Principles
The AHRC Guidelines set out four Guiding Principles and seven Standards that “give organisations and businesses guidance on what the Commission expects them to do to meet their positive duty under section 47C of the Sex Discrimination Act”.
The Guiding Principles, which cover all components of staff recruitment, employment and retention, are as follows:
Consultation
The AHRC encourages employers to talk to workers about “what they need for a workplace to be (and feel) safe and respectful”. Consultation involves being “better informed about issues affecting workers and what action to take”.
Gender equality
Ensuring that “people of all genders have equal rights, rewards, opportunities and resources” is another structuring principle of the AHRC’s Guidelines. The AHRC encourages employers to go beyond aiming for ‘equal treatment’ to achieving ‘equal outcomes’, noting that gender inequality can be both a cause and a consequence of relevant misconduct.
Intersectionality
The concept of intersectionality refers to how “different aspects of a person’s identity intersect and impact one another”. Different people may experience different disadvantages and levels of discrimination based on the different aspects of their identity.
The AHRC gives the following example of intersectionality: it notes that LGBTIQ+ women are “at greater risk of sexual harassment at work than people who identify as straight or heterosexual”.
Person-centred and trauma-informed
The AHRC encourages organisations and businesses to adopt approaches that make “systems and processes understand and meet the needs of individuals”, putting individuals at the centre.
These approaches “involve prioritising someone’s needs, values and preferences – listening to them and recognising and respecting their ability to make choices for themselves.”
The AHRC also recommends that employers make their approaches “trauma-informed”. This requires workplaces to have processes that “build in an understanding of trauma and how it affects people and avoid causing further harm”.
For example, if a person has experienced sexual harassment at work, the employer should prioritise “safety, choice and empowerment”, recognising that trauma may affect the person’s ability to recall information.
According to this principle, the onus on employers is not just to prevent harm where possible but also to “promote repair and recovery to the greatest extent possible.”
The AHRC’s seven standards
The AHRC outlines seven standards for organisations and businesses to prioritise in their efforts to comply with the positive duty.
Leadership
Senior leaders should set a tone from the top, recognising that “what they say and do gives a strong message to workers about what is acceptable, important and valued”. Leaders have a responsibility to proactively communicate a commitment to making the workplace “safe, respectful, diverse and inclusive”.
Culture
Workplace culture refers to the “overall character of an organisation”. It is important for organisations and businesses to foster workplace cultures that are safe, respectful and inclusive, through leadership statements, HR processes, accepted ways of interacting with colleagues and third parties and recognition of diversity and inclusion as the norm.
Knowledge
Organisations and businesses should have in place a policy on respectful behaviour and unlawful conduct, cementing this policy with appropriately robust and relevant education and training. The policy and training should communicate workers’ rights and responsibilities in relation to working in safe, respectful and inclusive environments, outlining the standards of behaviour expected by both the law and the employer.
Risk management
Adding to the importance of workplace compliance with Repect@Work is the recognition that misconduct, with respect to sexual discrimination and harassment, is a health and safety risk.
The AHRC recommends that organisations and businesses adopt a risk management framework to mitigate the likelihood of misconduct occurring – that is, by identify risks (‘what are the drivers and risk factors relevant unlawful conduct at work?’), assessing when and where these risks are likely to occur; implementing measures to control these risks; and evaluating the risk management framework control measures to ensure they are effective.
A risk-based approach considers the duration (how long a person is exposed to a risk), frequency (how often a person is exposed to the risk) and severity (level of seriousness) of the risks identified.
Support
Organisations and businesses should make appropriate support available to workers (including leaders and managers) who experience or witness misconduct.
Reporting and response
The AHRC advises organisations and businesses to provide appropriate options for reporting and responding to misconduct, and to make workers and anyone else affected aware of these options through effective communication.
Employers should:
- highlight that multiple avenues for reporting and resolution exist, both internal and external
- be fair to all parties, doing what they can to ensure that the people responsible for investigating and deciding consequences are separate from parties’ own support people
- prioritise confidentiality, so that only people who need to know receive information about a report of misconduct
Monitoring, evaluation and transparency
Finally, the AHRC recommends that organisations and businesses collect appropriate data to understand the nature and extent of misconduct in relation to their workforce, using this data to regularly assess and improve workplace culture and workplace compliance, and to develop measures to prevent and respond to misconduct in future.
Proactive compliance
The AHRC’s Guidelines on compliance with the positive duty establish proactive communication and action as crucial bulwarks against misconduct in relation to sexual discrimination and harassment. More than that, and beyond ensuring that people don’t experience a hostile workplace, it places a focus on inclusion, support and monitoring as a means of fostering workplace compliance and creating cultures of respect.
“Culture is never fixed and permanent but, rather, is constantly changing. Depending on the size of an organisation or business, there may be multiple cultures,” the Guidelines note.
As a new era unfolds with the AHRC now enforcing the positive duty, hostile workplace cultures are clearly untenable for employers and employees alike. Organisations and businesses will have to come to terms with Respect@Work reforms by being more resolute and agile in how they generate and practise genuine respect at work.
Sources
https://www.respectatwork.gov.au/organisation
Workplace Behaviours Online eLearning – Australia – GRC Solutions