The positive duty: New regulatory powers for the AHRC
On 12 December 2023, the Australian Human Rights Commission (AHRC)'s new regulatory powers in relation to the positive duty commenced and the AHRC published its associated Compliance and Enforcement Policy.
The AHRC now has powers to conduct inquiries into compliance with the positive duty where it 'reasonably suspects' non-compliance. Reasonable suspicion requires less than a reasonable belief, but more than a possibility. Recently-appointed Sex Discrimination Commissioner, Dr Anna Cody, has previously indicated that high-risk industries would be the first targets for the AHRC's regulatory powers, including the mining, retail and legal industries. In conducting an inquiry, the AHRC has powers to compel production of documents and examine witnesses. It is an offence punishable by up to 12 months' imprisonment to knowingly give false or misleading information to the AHRC during the course of a positive duty inquiry, or to knowingly produce a document containing false or misleading information in response to a compulsory notice.
The AHRC can now issue compliance notices to specify actions duty holders must take to address non-compliance, or enter into enforceable undertakings with duty holders whereby the duty holder agrees to do or refrain from doing certain things. Non-compliance with a compliance notice or enforceable undertaking can be enforced by the AHRC in the Federal Court or the Federal Circuit and Family Court of Australia.
In its Compliance and Enforcement Policy, the AHRC confirms that it intends to work collaboratively with duty holders to help them achieve voluntary compliance. It will exercise its functions to ensure that duty holders receive the support, guidance and information necessary to comply with their obligations under the positive duty.
The AHRC's approach to compliance
Notably, the AHRC has not yet indicated how it intends to work with other regulators, including the Fair Work Ombudsman and safety regulators. Employers continue to call for clarity in this regard, as organisations are concerned about regulatory burden and being subjected to enforcement activity from multiple agencies in respect of the same conduct or concerns. The AHRC alludes to the sharing of information with other agencies in its Compliance and Enforcement Policy when discussing confidentiality obligations of its officers. We will be following closely any guidance from the AHRC and other regulators around information sharing protocols.
We recommend that organisations, if they have not already done so, audit their existing framework for preventing and responding to sexual harassment and other psychosocial hazards, to ensure they meet the standards expected by the AHRC in the context of the positive duty, as well as their WHS obligations. In particular, we note the expectation of the AHRC that duty holders will have a written Prevention and Response Plan in place, which is endorsed by the Board.
Changes to WGEA reporting obligations
To recap, private sector and Commonwealth employers must report to the Workplace Gender Equality Agency (WGEA) if they employ 100 or more employees, or are a registered higher education provider (relevant employers).
Relevant employers are now required to share their WGEA Executive Summary and Industry Benchmark Reports with the organisation's board or governing body, as soon as reasonably practicable after receiving them from WGEA. These reports relate to the last reporting period (April 2023).
From April 2024, relevant employers will also have expanded reporting obligations.
Current reporting obligations require employers to report on six Gender Equality Indicators (GEIs):
- Gender composition of the workforce
- Gender composition of governing bodies
- Equal remuneration between women and men
- Availability and utility of employment terms, conditions and practices relating to flexible working arrangements and to working arrangements supporting employees with family or caring responsibilities
- Consultation with employees on issues regarding gender equality in the workplace
- Sexual harassment, sex-based harassment and discrimination.
In addition to existing obligations, from April 2024, relevant employers will also be required to report on:
- Workforce data concerning employee age and primary workplace location, and CEO, manager and non-manager remuneration (which was previously reported on a voluntary basis).
- Provisions set out in any policy/strategy related to preventing and responding to sexual harassment, harassment on the grounds of sex and discrimination, including accountabilities for: preventing and responding; the provision of training, its frequency, and its content; the disclosure processes and management of disclosures; and leadership statements or communication to demonstrate commitment to prevention and response.
- Information about sexual harassment risk management.
- Information about the prevalence data the organisation collects.
- Supports available for staff.
A new obligation will also commence for employers with 500 or more employees (designated relevant employers). They will be required to meet 'minimum standards' in relation to the updated GEIs. The minimum standards require that designated relevant employers have in place policies or strategies that cover all six GEIs. Those policies or strategies must aim to achieve the objective specified for each GEI in the Workplace Gender Equality (Gender Equality Standards) Instrument 2023. Importantly, not only will the collection of this data assist employers to satisfy their WGEA reporting obligations, this data can be used to inform risk assessments and determine appropriate measures for preventing and responding to sexual harassment and related unlawful behaviours, in accordance with an organisation's positive duty and WHS obligations.
Public reporting of gender pay gap data
WGEA has previously collected gender pay gap data from employers, however that information has not been disclosed beyond its confidential employer reports.
From early 2024, WGEA will commence publicly reporting employer gender pay gaps by mean, median and remuneration quartile. Employers will be informed of their gender pay gap in advance of it being made public, and will have the opportunity to provide a statement giving context to their gender pay gap results and outlining their plans and actions to address their results. It is expected that a link to the employer's explanatory statement will be published on WGEA's website alongside their gender pay gap.
WGEA will begin publishing private sector employer gender pay gaps from April 2024, with Commonwealth sector employers to follow in late 2024 to early 2025.
There has been considerable media reporting this week regarding business and Boards not being ready for these changes. We are happy to discuss with you ways we can assist with compliance in respect of the positive duty, preparing a written Prevention and Response Plan and the upcoming changes to WGEA reporting obligations.
We are also able to provide briefings on these changes and the Respect@Work reforms generally, including to Boards, Executive leadership teams and people managers. For further insights on creating safe, inclusive and respectful workplaces, see our Respectful workplace cultures page.