Since December 2022, there has been a new positive duty on all employers and persons conducting a business or undertaking (PCBUs) to proactively prevent discrimination and harassment in their workplaces.
Not-for-profit Law’s legal advice team has been receiving requests from not-for-profit organisations for practical guidance on how to comply with obligations to proactively take steps to prevent discrimination and harassment and manage psychosocial risks in their workplaces. We’ve put together a summary of frequently asked questions to help more community organisations navigate the reforms, provide safe workplaces, and protect their employees and volunteers.
How have your organisation’s duties changed?
Since December 2022, the Sex Discrimination Act 1984 (Cth) includes a positive duty on all employers and PCBUs to proactively prevent discrimination and harassment in their workplaces by taking reasonable and proportionate measures to eliminate, as far as possible:
- discrimination on the ground of sex
- unlawful sexual harassment
- unlawful harassment on the ground of sex
- workplace environments that are hostile on the ground of sex, and
- acts of victimisation
This change shifts the focus on employers from responding to discrimination and harassment that has already occurred to proactively preventing discrimination and harassment in workplaces.
Organisations owe this obligation to all workers – including volunteers, and potential volunteers.
How do these new duties relate to existing work health and safety laws?
This new positive duty under the Sex Discrimination Act operates concurrently with the existing duties under work health and safety (WHS) laws at a federal, state and territory level.
In June 2022, under changes to the model WHS regulations, the primary duty of PCBUs to ensure, as far as is reasonably practicable, the health and safety of workers now expressly includes psychological health and safety.
The duty is not limited to physical health and safety. Because psychosocial hazards can cause psychological and physical harm, a PCBU must eliminate psychosocial risks in the workplace or, if that is not reasonably practicable, minimise these risks so far as is reasonably practicable.
To help implement this extended duty, Safe Work Australia has published a Model Code of Practice for managing psychosocial hazards at work.
Psychosocial hazards are (among other things) defined to include risks associated with sexual harassment, victimisation and sex discrimination.
It is up to each state and territory to adopt the federal model WHS regulations. Organisations will need to check if the model WHS regulations have been adopted in the state or territory they operate in.
How do these duties apply to volunteer involving organisations?
The new positive duty under the Sex Discrimination Act affords protection to all paid and unpaid workers, including volunteers and interns engaged by an employer or PCBU. This is because, from September 2022, the definition of ‘worker’ in the Sex Discrimination Act includes volunteers and potential volunteers going through a volunteer recruitment process.
However, the new positive duty does not apply to entirely volunteer run organisations that don’t engage contractors or employees.
Under WHS law, the definition of ‘worker’ also includes volunteers, so PCBUs have an obligation to manage psychosocial hazards to its volunteers.
The new positive duty under the Sex Discrimination Act and the PCBU obligation under WHS law to manage psychosocial hazards do not apply to entirely volunteer run organisations.
However, if these duties do not apply to your entirely volunteer run organisation, your organisation may still have a broader duty under general negligence law to avoid exposing your volunteers to reasonably foreseeable risks of injury – which can include harm caused by sexual harassment or psychosocial hazards.
What happens if your organisation doesn’t comply with these duties?
Organisations, including volunteer involving organisations, that are covered by the Sex Discrimination Act and WHS law (for example, organisations with at least one paid employee) can face penalties for failing to comply with their duties. Organisations that fail to comply with WHS laws can be fined and can, in serious cases, face prison terms.
Amendments to the Fair Work Act 2009 (Cth) also mean that volunteers will now be able to apply to the Fair Work Commission (FWC) for a ‘stop sexual harassment order’, and the FWC can also hear and deal with complaints and disputes.
From 12 December 2023, the Australian Human Rights Commission (AHRC) will have the power to enforce compliance with the positive duty under the Sex Discrimination Act.
The AHRC is also tasked with educating organisations and employers to understand and comply with their obligations. The AHRC has published guidelines on how to comply with the positive duty under the Sex Discrimination Act.
What actions should your organisation take?
Regardless of which laws and duties apply to your organisation, it remains best practice for all organisations to take proactive steps to ensure the workplace is respectful, supportive, and as safe as possible from psychosocial hazards and risks of sexual harassment and discrimination.
If you’re unsure what action to take, these tips are a great starting point:
1. Conduct a risk audit
A risk audit can identify any potential psychosocial hazards in your workplace, or risks of harassment, discrimination, hostile environments or victimisation.
In conducting this risk assessment:
- treat psychosocial risks with the same seriousness as you would physical risks
- have conversations with workers or conduct anonymous surveys to understand workers’ experiences in the workplace (this can help identify risks and issues, as well as possible actions and solutions that workers feel would support them)
- identify environmental conditions or physical aspects of the workplace which could pose a risk to the safety of workers (for example, poor lighting and little surveillance where people will be working or volunteering later at night)
- assess risk through an intersectional lens, and understand that certain risks may be experienced to a greater extent by some people due to different social-cultural factors and multiple intersecting identities (for example, race, religion, sexuality, gender, disability)
2. Implement a strong, clear discrimination and sexual harassment policy
The discrimination and sexual harassment policy should be accessible, easy to understand, and not include unnecessarily complicated processes. Senior staff and managers should be particularly familiar with the policy, as they set both expectations as well as an example within the workplace.
3. Run recurrent compliance training on sexual harassment and discrimination
This is mandatory for all workers, to ensure everyone understands the law as well as the organisation’s policy and complaints process. In turn, this will likely help workers feel more confident in speaking up and help build a culture of respect and non-tolerance for sexual harassment and discrimination.
4. Always take complaints seriously
Provide early, ongoing, and confidential support. Responses to, and consequences of, complaints should be consistent, timely, and proportionate.
5. Nominate someone who will monitor your organisation’s ongoing compliance with the positive duty
Part of the nominated person’s work may include:
- evaluating anonymous surveys as part of risk auditing
- gathering and reporting on data relating to unlawful conduct and complaints made, and
- using that information to identify trends in the workplace’s culture
The content on this webpage was last updated in October 2023 and is not legal advice. See full disclaimer and copyright notice.