As the festive season begins, workplace celebrations can be a source of joy—but also significant risk. With recent updates to Australian workplace laws, including the Positive Duty under the Sex Discrimination Act 1984 (Cth), employers now face heightened obligations to take proactive measures against harassment and discrimination, with personal liability at stake if they cannot demonstrate adequate prevention efforts.
Understanding the Positive Duty Legislation
The Positive Duty requires employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate, as far as possible, certain discriminatory conduct, including sex discrimination, sexual harassment, and acts of victimisation in the workplace context.
This duty mandates proactive steps to prevent such behaviours, extending beyond merely responding to complaints.
Recent Case Highlighting Employer Liability
The courts have demonstrated a readiness to impose substantial damages on employers who fail to uphold their obligations under the Positive Duty. Notable cases include:
- Record Payout for Sexual Harassment: In a landmark decision, the Federal Court of Australia awarded over $268,000 in damages to an employee who was sexually harassed by her employer. The court found that the employer failed to take reasonable steps to prevent the harassment, underscoring the importance of proactive measures.
Proactive Measures to Protect Your Business and Employees
To mitigate risks and ensure compliance with the Positive Duty, consider implementing these strategies:
- Develop, Communicate, and Maintain Policies:
- Establish comprehensive HR and WHS policies covering harassment, discrimination, and workplace conduct, ensuring alignment with current laws and best practices.
- Make these policies accessible and a key part of induction and ongoing training.
- Regularly review and update policies to reflect legislative changes and workplace needs, documenting updates to demonstrate proactive compliance efforts.
- Monitor and Manage Workplace Events:
- In the weeks before events, send a memo or include a briefing in team meetings to remind staff of the policies, expected conduct, and consequences of violations.
- Clearly communicate the function’s start and finish times, encouraging employees to plan safe travel home.
- Manage alcohol responsibly by implementing measures such as drink limits or providing non-alcoholic options and assign supervisors to monitor conduct and intervene if necessary.
- Provide Regular Training:
- Conduct regular training sessions to educate employees and management about what constitutes harassment and discrimination.
- Highlight the Positive Duty legislation and its implications for individuals and the business.
- Establish Reporting Mechanisms:
- Create confidential and accessible channels for employees to report harassment or misconduct.
- Investigate complaints promptly and fairly, ensuring procedural fairness and maintaining records of actions taken.
Conclusion
The introduction of the Positive Duty legislation signifies a shift towards proactive prevention of workplace harassment and discrimination. Employers must take deliberate steps to foster a safe and respectful work environment, especially during events like Christmas parties. Businesses can protect their employees and mitigate legal risks by implementing comprehensive policies, providing regular training, and establishing clear reporting mechanisms.
If you need help understanding your HR and WHS responsibilities or reviewing your workplace policies, contact Business 360 at 1300 287 360 or email info@business360.au.
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