Amanda Watt is a partner in MinterEllison's Melbourne workplace practice and has worked closely with the Champions of Change Coalition, including about the Coalition's 2020 report: Disrupting the System – preventing and responding to sexual harassment in the workplace. Amanda also supported the Respect@Work Council in developing Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints.

The last three years have been a watershed in terms of government policy in relation to workplace sexual harassment. How would you characterise that time both in terms of government action and business's response?

The continuing prevalence of sexual harassment has led to significant legislative changes. There have been changes to the Sex Discrimination Act, Fair Work Act, Workplace Health and Safety legislation, and the Workplace Gender Equality Agency Act in recent times. These changes, which apply now or will commence to operate later in 2023 and 2024, are world-leading. They interconnect and reinforce each other to form a legislative framework, which is directed to shifting organisational accountability from reactive compliance to the systemic prevention of sexual harassment, sex-based harassment and discrimination, hostile workplace environments and related victimisation.

I am pleased with the government's action and that the various pieces of legislation have a common purpose of preventing harm in workplaces. For example, the new prohibition on preventing hostile workplace environments is important because it is directed at eliminating behaviours that can escalate to sexual harassment if not dealt with quickly and appropriately.

Business is on notice that it is no longer sufficient to respond to these behaviours by merely relying on complaints made by persons affected and expecting them to do so when they are vulnerable. The harm has already occurred by that stage. And we know from multiple surveys and data that these behaviours are significantly under-reported in Australia.  

I sense that the business community is committed to making changes that keep everyone at work safe. It understands that legal compliance is one thing. However, outstanding leadership and safe and respectful cultures are essential if sexual harassment and related unlawful behaviour are to be prevented in the long term.

Can you talk about the positive duty and what it means?

At a conceptual level, the Positive Duty is the qualitative change in focus in the Sex Discrimination Act to the systemic prevention of sexual harassment and related unlawful conduct across Australia. It provides that employers and 'persons conducting a business or undertaking' must take reasonable and proportionate measures to eliminate this unlawful conduct as far as possible.

The positive duty extends to organisations regulating their own conduct and the conduct of their employees and workers towards each other and also toward third parties (such as customers and suppliers). It also protects employees/workers from the conduct of third parties in connection with their work. However, this "third party" aspect of the positive duty does not apply to discrimination on the grounds of sex.

The positive duty is enforceable by the Australian Human Rights Commission and the Federal Courts from 12 December 2023. Our Sex Discrimination Commissioner has recently confirmed that the Commission will first focus on compliance with the positive duty by the legal, mining and retail industries.

Complying with the positive duty will involve employers revisiting their policies and processes for responding to sexual harassment and, most importantly, the level of transparency as to how sexual harassment will be dealt with through a lens of prevention and cultural change.

Importantly, organisations' compliance with the positive duty will be assessed against the Commission's Guidelines, released in August. They explain who must satisfy the positive duty, what it means to take reasonable and proportionate measures to eliminate relevant unlawful conduct, and how the positive duty will be enforced by the Commission.

There are 7 standards, each of which must be satisfied and implemented according to the four guiding principles:

The standards are: Leadership, Culture, Knowledge, Risk management, Support; Reporting and response; and Monitoring, evaluation and transparency. Compliance with the Leadership standard is considered by the AHRC as fundamental to implementing the other 6 standards.

The Guiding Principles are: be person-centred and trauma-informed; advance gender equality; take account of intersectionality; and consult with the workplace.

The Commission has made clear that all seven of the Standards are interrelated and that action taken in one of the Standards may assist an organisation to meet another Standard.

A key practical requirement of the Standards is for organisations to develop a written prevention and response plan.

The Fair Work Commission also has new powers regulating sexual harassment under the Fair Work Act 2009, which commenced in March 2023. What are those changes about?

The FWC has powers to stop sexual harassment orders or resolve sexual harassment disputes. A stop sexual harassment order will be made where there is a continuing risk of sexual harassment. It is in the hands of employers as to whether their employees seek out this avenue. Employees usually seek external redress when they don't trust that their workplace will take their concerns seriously or take prompt and appropriate action to keep them safe and prevent harm.

There have been high-profile incidents of sexual harassment by very senior leaders. Do boards have the right risk lens through which they respond to sexual harassment by senior corporate leaders?

I see the risk lens through which boards are responding to sexual harassment by senior corporate leaders, refocusing. The priority must expand from minimising reputational damage and legal liability to creating a culture and systems that ensure a physically and psychologically safe workplace. Shareholders, investors, employees, regulators and the community now demand this.

Preventing sexual harassment and related unlawful behaviours is a safety issue. Business must take steps to prevent these harmful behaviours as part of their safety plan and then ask: What more must we do to satisfy our positive duty?

Capturing their strategy in a written prevention and response plan, which the AHRC expects, is necessary.

In my work with executives and Boards, it's become apparent that those who lean into the issue – and view it through the risk lens of workplace safety – make a real difference in their organisation.

Culture is led from the top, including a safe workplace culture. Are those at the top of our organisations, our CEOs and Chairs, sufficiently equipped to ensure they preside over a workplace free of sexual harassment. What are you advising them to do?

It's useful to take a step back, look at the system at a high level, and understand how it all fits together. Sexual harassment is a safety issue. The question for Boards and senior leadership is, "How do we keep people safe, and how do we stop these behaviours from happening so we prevent harm?" Then, we need to unpick what's getting in the way and how we can improve that, focusing on the priorities that will have the most significant and timely positive impact.

The law is not a panacea – it provides a framework for compliance, but cultural transformation must occur in the workplace.

Creating safe and respectful cultures requires:

First, leadership must understand where the organisation is regarding keeping its people safe. This understanding should be informed by good data and be regularly revisited. Then, building, maintaining and monitoring a culture of prevention is a product of the following:

• Leadership and good governance – because culture is modelled from the top;
• Person-centred processes and systems - In practice, being person-centred means putting the person at the centre of how the organisation responds to the harmful behaviours by seriously taking into account their wishes, provided it is safe for everyone to do so;
• Greater transparency (on what you stand for, are doing and learning); and
• Always applying a safety lens.

This builds psychological safety and trust that the organisation is committed to preventing and appropriately responding to harmful behaviours.

This leads to increased reporting of any concerns and what we refer to as a virtuous cycle of prevention because when appropriate and proportionate action is taken in response to these concerns, this further consolidates this trust and makes it less likely that harmful behaviours will occur in the first place. They are prevented because perpetrators know they will be held accountable if they engage in the behaviour.

The work done by the Australian Human Rights Commission and safety regulators in providing guidance helps educate and provide tools to make positive change.

Is there anything you would like to add?

A safe and respectful culture and a working environment free from harm are the keys to a flourishing and productive workplace.

It is not a set-and-forget exercise.

Everyone in an organisation needs to be clear on their responsibilities, supported and accountable for keeping everyone safe.