Workplaces now have a positive duty to address sexual harassment – the APS included

WRITTEN BY John Wilson & Kieran Pender

Sexual harrassment employment

Late last year, the most significant change to federal anti-discrimination law in decades was enacted: an obligation on employers to actively prevent and address sexual harassment and sex discrimination in the workplace. This “positive duty” was a central recommendation of the landmark Respect@Work report, led by then-sex discrimination commissioner Kate Jenkins.

Following a 12-month transition period, the enforcement powers of the Australian Human Rights Commission (AHRC) take effect next month. That means all employers, large and small, have a legal responsibility to be taking reasonable and proportionate measures to eliminate sexual harassment and sex discrimination. Failure to do so could lead to enforcement action, including significant penalties.

The public service is not immune from these workplace scourges. In the last APS employee census, one in 10 public servants said they had been subject to harassment or bullying over the previous 12 months. Incidents were slightly higher among First Nations staff, at 16 per cent, and public servants with a disability, at 18 per cent. (These figures include non-sexual forms of harassment, too).

During 2021-22, agencies recorded more than 600 complaints about incidents of bullying or harassment; although research on the extent of under-reporting suggests this represents only a fraction of actual incidents. Employee surveys by the Community and Public Section Union has similarly indicated that sexual harassment remains a problem in the APS.

Since the positive duty was enacted, public sector agencies have been working to ensure compliance – with the Australian Public Service Commission (APSC) playing an important central role. In a statement issued in February, the Commission underscored that agencies must ensure “that workplaces are safe, respectful and free from harassment, and the APS leads by example”.

In addition to being unlawful under federal anti-discrimination law, sexual harassment is also, the APSC reminded staff, “inconsistent with APS employees’ and agency heads’ obligations under the APS Values, Employment Principles, and Code of Conduct” in the Public Service Act 1999.

So what should public servants, particularly public sector managers, be doing to comply with the positive duty?

In August, the AHRC published guidelines on complying with the positive duty – which the Commission indicated it would use to assess compliance. While of course it is a responsibility of agencies as a whole to comply, not individual managers, the AHRC’s document provides helpful guidance for all of us.

The guidelines set out seven standards: leadership; culture; knowledge; risk management; support; reporting and response; and monitoring, evaluation and transparency. The full guidelines, at more than 100 pages, contain helpful detail, including case studies, on implementing these standards. We wish to highlight three as particularly salient for public servant managers.

First, leadership. Managers and supervisors, especially but not solely senior leadership, should be visible in their commitment to “safe, respectful and inclusive workplaces that value diversity and gender equality”. Managers should set clear expectations within their team about respectful behaviour, and role model those behaviours at all times.

Consider speaking with your team about the positive duty taking effect, outlining why respectful workplaces are important and outline what your agency is doing to prevent and address inappropriate behaviour at work.

The positive duty requires we move beyond a “set and forget” mindset – it’s important managers and leaders are regularly reiterating expected standards of behaviour. Perhaps make a remind to raise the topic again in six months’ time.

Second, risk management. “Organisations and businesses recognise that relevant unlawful conduct is an equality risk and a health and safety risk,” offers the guidance. “They take a risk-based approach to prevention and response.”

Consider the contexts in which your staff might be at risk of exposure to unlawful harassment. Are some staff regularly in face-to-face contact with external stakeholders or members of the public? Do they often find themselves in situations of power imbalance – i.e. dealing with senior internal or external stakeholders in a one-on-one setting? While workplace behaviour can occur in any workplace, research shows it is more common in external settings, settings where alcohol is consumed and situations involving a power imbalance.

If your team has previously dealt with incidents of harassment, consider what learnings have been adopted to prevent re-occurrence. Are there trends or patterns?

Third, support. Ensure you know what support options, internal and external, are available to staff who have experienced harassment or discrimination. Support could come through employee assistance programs, unions or specialist response services. Have contact details and further information close to hand. As the guidance notes, “support should be made available to all workers, regardless of whether they choose to make a formal report about their experiences of relevant unlawful conduct or conduct they have witnessed”. “It should be person-centred and trauma-informed to ensure that people who witness or experience relevant unlawful conduct are not further harmed by responses.”

These three steps are just a start. All Australians have the right to go to work and be free from discrimination and harassment. The new positive duty means that all employers – the APS included – must take active steps to prevent sexual harassment and sex discrimination.

While agencies have already done much work to comply with the positive duty, it must remain an ongoing priority. And although managers have particular responsibilities, it is an obligation on all public servants to contribute to harassment-free and discrimination-free workplaces.

As AHRC President Emeritus Professor Rosalind Croucher put it in the foreword to the positive duty guidance, “this is an opportunity for Australian workplaces to become what they should be – safe, inclusive, gender-equal, and free from sexual harassment and sex discrimination”. We could not agree more.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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