From 12 December 2023, the Australian Human Rights Commission powers to enforce the positive duty commence.

The AHRC can commence an inquiry when it ‘reasonably suspects’ that an organisation or business is not complying with the positive duty.

The Commission will have the power to:

• conduct inquiries into compliance with the positive duty by an organisation or business and provide recommendations to achieve compliance

• issue a compliance notice specifying action that an organisation or business must take, or refrain from taking, to address any non-compliance

• apply to the federal courts for an order to direct compliance with a compliance notice

• enter into enforceable undertakings with an organisation or business under which the organisation or business agrees to do, or refrain from doing, certain things.

Businesses and organisations can use the Australian Human Rights Commission’s positive duty framework to start taking steps to foster safe, respectful and inclusive workplace cultures.

A new prevention and response framework

Elevate Consulting Partners worked with the Australian Human Rights Commission to develop a new framework that provides an evidence-based pathway for organisations and businesses to create safe, respectful and inclusive workplaces.

The framework includes four guiding principles and seven standards that set out what the AHRC expects businesses and organisations to do in order to meet their positive duty obligations.

In developing the framework, the AHRC engaged in extensive consultation with regulators and stakeholders to ensure alignment, as far as possible, with existing duties in work healthy and safety regulations and the Victorian positive duty under the Equal Opportunity Act 2010 (Vic).

Guiding Principles

The framework contains four Guiding Principles to help inform businesses and organisations about what it needs to do in its own circumstances to effectively eliminate relevant unlawful conduct. The AHRC expects that the four Guiding Principles will be considered and applied when implementing the seven Standards.

1. Consultation

Being consultative means talking to workers about what they need for a workplace to be and feel) safe and respectful, as well as the risks and mitigation options that they see to eliminate relevant unlawful conduct. Consultation recognises that workers have an important perspective on what affects them. Effective consultation means being better informed about issues affecting workers and what action to take. Strategies may be needed to ensure that the voices of people from marginalised and underrepresented groups are heard and considered.

2. Gender equality

All actions to implement the positive duty should contribute to achieving gender equality – where people of all genders have equal rights, rewards, opportunities and resources. Achieving gender equality involves taking action beyond ‘equal treatment’ to achieve ‘equal outcomes’, also known as substantive gender equality. Gender inequality is both an underlying cause and consequence of relevant unlawful conduct.

3. Intersectionality

An intersectional approach recognises that unsafe and disrespectful workplace behaviour may have a heightened impact on different people. It involves understanding that experiences of discrimination, harassment and victimisation are shaped and increased by overlapping structural inequalities. For example, LGBTIQ+ women being at greater risk of workplace sexual harassment than people who identify as straight or heterosexual. By taking an intersectional approach, organisations identify and address these unique risk factors and intersecting disadvantages.

4. Person-centred and trauma-informed

Person-centred and trauma-informed approaches are complementary ways to address relevant unlawful conduct and to meet people’s needs in the workplace. They ensure that workplace systems, policies and practices affirm the safety and dignity of the people who encounter them and support healing. Person-centred approaches are about making systems and processes understand and meet the needs of individuals. They involve prioritising someone’s needs, values and preferences – listening to them and recognising and respecting their ability to make choices for themselves. Trauma-informed approaches require that workplace processes build in an understanding of trauma and how it affects people and avoid causing further harm. They prioritise safety, choice and empowerment and also recognise the impact of trauma on a person’s ability to recall information. Processes should prevent harm and promote repair and recovery to the greatest extent possible. Being person-centred and trauma-informed does not always mean doing what a person requests, but it does mean genuinely considering their wishes and the impact that decisions may have on them.

Seven Standards

The seven standards, extracted below, were developed based on research of what is effective in eliminating sexual harassment and sex discrimination. The Guidelines set out examples of practical actions that small, medium and large businesses can take to meet each standard. Businesses should not, however, feel limited by the examples provided. Creative, innovative and bold strategies to achieve substantive equality and foster positive workplace cultures are strongly encouraged.

1. Leadership

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

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. 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 modelrespectful behaviour.

2. Culture

Organisations and businesses foster a culture that is safe, respectful and inclusive and that values diversity and gender equality. This culture empowers

workers (including leaders and managers) to report relevant unlawful conduct, minimises harm and holds people accountable for their actions.

3. Knowledge

Organisations and businesses develop, communicate and implement a policy regarding respectful behaviour and unlawful conduct. Organisations and businesses support workers (including leaders and managers) to engage in safe, respectful and inclusive behaviour through education on:

 expected standards of behaviour, including actions and attitudes that foster equality

and respect

 identifying behaviours that constitute relevant unlawful conduct, and the consequences for engaging in such conduct

 their rights and responsibilities in relation to safe, respectful and inclusive workplaces and working relationships. This includes their role in preventing and

responding to relevant unlawful conduct.

4. Risk management

Organisations and businesses recognise that relevant unlawful conduct is an equality risk and a health and safety risk. They take a risk-based approach to prevention and response.

5. Support

Organisations and businesses ensure that appropriate support is available to workers (including leaders and managers) who experience or witness relevant unlawful conduct. Workers are informed about the available support, and can access the support, regardless of whether they report the conduct.

6. Reporting and response

Organisations and businesses ensure that appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to workers and other impacted people. Responses to reports of relevant unlawful conduct are consistent and timely. They minimise harm to, and victimisation of, people involved. Consequences are consistent and proportionate.

7. Monitoring, evaluation and transparency

Organisations and businesses collect appropriate data to understand the nature and extent of relevant unlawful conduct concerning their workforce.

Organisations and businesses use the data they collect to regularly assess and improve the work culture, as well as to develop measures for preventing and responding to relevant unlawful conduct. Organisations and businesses are transparent about the nature and extent of reported behaviours that could constitute relevant unlawful conduct concerning their workers and actions taken to address it.