Positive duty now in force, but legal expert warns businesses unprepared

Former Australian Human Rights Commission legal adviser Prabha Nandagopal says businesses are ‘not prepared’ for the new positive duty that will force companies to proactively prevent sexual harassment.

‘Positive duty’ means employers will be responsible for ensuring the harassment does not occur in the first place, and be liable for harassment of staff by customers as well as their employers and fellow employees. Picture: istock

A former legal adviser to the Australian Human Rights Commission, Prabha Nandagopal, says businesses are not prepared for the new “positive duty” requirement forcing companies to proactively prevent sexual harassment.

“Positive duty” means employers will be responsible for ensuring the harassment does not occur in the first place, and be liable for harassment of staff by customers as well as their employers and fellow employees.

But Ms Nandagopal, a senior legal adviser on the Australian Human Rights Commission Respect@Work report, said even big businesses did not consider themselves equipped to adopt the positive duty obligation, which came into force this month.

“Data released by the Australian Institute of company directors … found two-thirds of ASX 300-listed board directors believed that their companies were not prepared to meet the positive duty obligation,” she said.

“Now this is the top end of town, with significant HR and legal resources. Imagine, small and medium businesses without that infrastructure in place, they are likely to be even less prepared.”

Ms Nandagopal said while collaboration and raising awareness would be the AHRC’s first tactic, it would turn to harsher enforcement measures to ensure positive duty was adhered to.

“They want to be working with businesses to achieve voluntary compliance … they’re going to help them as much as possible. But if that compliance isn’t there, they can issue compliance notices and then if that’s not met, they will not hesitate to go to the Federal Court to seek enforcement,” she said.

“I can tell you (it) is a very big stick to go to the Federal Court because no business wants to be hauled into court for failing to maintain a safe and respectful workplace.”

Peak business groups including the Australian Chamber of Commerce and Industry and the Council Of Small Business Organisations raised alarm over the pressure on businesses already reeling from significant industrial relations changes.

“The new positive duty affects businesses of all shapes and sizes. Employers must act now … by ensuring their policies and procedures are up to date, introducing training where appropriate and ensuring they have clear complaints mechanisms available to workers,” ACCI workplace relations director Jessica Tinsley said.

“Although most large employers will already have procedures in place, it is important that small businesses are provided extra support – they are already experiencing fatigue from the rate of complex regulatory change.”

COSBOA chief executive, Luke Achterstraat also stressed resourcing and government support for small businesses would be critical.