Preventing and responding to sexual harassment in the APS
One in three Australians experience sexual harassment at work. Employees have also told us that sexual harassment has occurred in the Australian Public Service (APS) and it remains a present concern.
Sexual harassment is often under-reported, so the true picture may not be known.
As a model employer, the APS must foster respectful workplaces that are safe and inclusive.
In 2022, the Australian Human Rights Commission(AHRC) conducted the fifth national survey to investigate the prevalence, nature and reporting of sexual harassment in Australian workplaces. The Time for respect: Fifth national survey on sexual harassment in Australian Workplaces report was published in November 2022. For the first time, the survey also asked about workers’ views on the actions taken by their employer to address workplace sexual harassment.
Positive duty changes from 12 December 2023
The changes to the Sex Discrimination Act gives the Australian Human Rights Commission new inquiry and enforcement powers to ensure that organisations and businesses, including APS agencies, are complying with their positive duty under the Sex Discrimination Act. These enquiry and enforcement powers came into effect 12 December, 2023. Hear more from Dr. Anna Cody, Australia's Sex Discrimination Commissioner.
A new Positive Duty under the Sex Discrimination Act 1984 (Cth)
Under the Sex Discrimination Act 1984 (Cth), organisations and businesses, including all APS agencies, now have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:
- discrimination on the grounds of sex in a work context
- sexual harassment in connection with work
- sex-based harassment in connection with work
- conduct creating a workplace environment that is hostile on the grounds of sex
- related acts of victimisation.
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (‘Respect at Work Act’) was passed by Parliament on 28 November 2022 and commenced on 13 December 2022.
The new positive duty imposes a legal obligation on organisations, including APS Departments and Agencies, to take proactive action to prevent sexual harassment and related unlawful behaviours from occurring in the workplace, or in connection to work. Taking preventative action will help to create safe, respectful and inclusive workplaces.
This important change requires organisations and businesses to shift their focus to actively preventing workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.
The positive duty was a key recommendation of the AHRC’s landmark Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report 2020 (Respect@Work Report), led by former Sex Discrimination Commissioner Kate Jenkins AO, published in March 2020.
The AHRC has new powers to investigate and enforce compliance with the new positive duty under the Sex Discrimination Act 1984 (Cth). These powers will commence on the 12th of December 2023.
The Australian Human Rights Commission have published extensive resources about the new positive duty and their new powers to investigate suspected non-compliance with the positive duty on their Guidelines for Complying with the Positive Duty.
Has your agency:
Existing obligations for APS agencies
In addition to the Sex Discrimination Act 1984 (Cth), APS agencies must continue to meet their obligations and duties under the Work Health and Safety Act 2011, the Work Health and Safety Regulations 2011, as well as other relevant legislation.
Under the APS Commissioner’s Directions 2022, there is a requirement for Agency Heads to consult with the Commissioner before entering into an agreement settling a dispute with an APS employee that includes a confidentiality or non-disclosure clause if the matter relates to sexual harassment. Agency Heads must also notify the Commissioner of all non-disclosure agreements entered into each financial year. These arrangements are to ensure that there is accountability and assurance across the APS in the use of confidentiality and non-disclosure provisions in such agreements.
Sexual harassment is inconsistent with APS employees’ and agency heads’ obligations under the APS Values, Employment Principles, and Code of Conduct, set out respectively in ss.10. 10A, and 13 of the Public Service Act 1999.
There are different channels for reporting incidences of sexual harassment and related unlawful behaviours depending on the outcome the employee is seeking. A high level overview of potential reporting avenues can be found on the Respect@Work website here.
The APSC led a webinar on Preventing and responding to workplace sexual harassment, sex discrimination and victimization: New positive duty on employers which was held on 1 September 2023. Presenters from the APSC, the Attorney-General’s Department, Comcare and the AHRC discussed the ongoing prevention and response to sexual harassment and related unlawful conduct within the APS, and the new positive duty obligations under the Sex Discrimination Act 1984 (Cth).
The recording is available in the Past Events section on the APS HR Professional Network community on GovTeams. If your agency does not have access to GovTeams, please email the Inclusion Policy team at email@example.com for access to the webinar recording.
- Respect@Work Education and Training eLearn courses and Fact Sheets: Education and training | Respect@Work (respectatwork.gov.au)
- Comcare’s Training and Learning webpage
- Australian Human Rights Commission’s webpage: The Positive Duty under the Sex Discrimination Act | Australian Human Rights Commission
This webpage includes:
- the Guidelines for Complying with the Positive Duty (2023)
- Information Guide on the Positive Duty
- A Quick Guide for Complying with the Positive Duty (2023)
- a Resource for Small Business on the Positive Duty (2023)
- an online Positive Duty Form to inform the AHRC if you have concerns about an organisation or business complying with the new positive duty under the Sex Discrimination Act 1984 (Cth), and;
- a number of factsheets related to workplace sexual harassment and the new positive duty.
- The Australian Human Rights Commission’s Respect@Work Good Practice Indicators Framework for Preventing and Responding to Workplace Sexual Harassment (the Good Practice Indicators Framework).
- Safe Work Australia’s Code of Practice: How to Manage Work Health and Safety Risks.
- Safe Work Australia’s Code of Practice: Work Health and Safety Consultation, Co-operation and Co-ordination.
- Safe Work Australia’s Managing Risks – Workplace sexual harassment webpage.
- Safe Work Australia’s Model Code of Practice: Managing psychosocial hazards at work | Safe Work Australia
- Safe Work Australia’s Code of Practice: Managing the work environment and facilities (includes remote and isolated work)
- Safe Work Australia’s Remote and isolated work - Managing risks | Safe Work Australia
- Comcare Fact Sheet Risk Management: A Snapshot
- Comcare Manage risks in the workplace webpage
- Comcare’s Workplace Sexual Harassment: Regulatory guidance for employers on their work health and safety responsibilities
- How to Manage Work Health and Safety Risks: Code of Practice 2015, made under the Work Health and Safety Act 2011, section 274 (Approved Codes of Practice). This Code of Practice has clear, step-by-step guidance about the risk management process, including hierarchy of controls.
- Comcare’s Workplace sexual harassment: Practical Guidance for Managers and Supervisors.
- Comcare Remote or isolated work | Comcare
The AHRC, together with the Respect@Work Council, launched the new Respect@Work website in late 2022 providing comprehensive information and resources to help organisations fulfil their obligations and create respectful workplaces that are free from harassment.
- Respect@Work Risk Management Process for Sexual Harassment webpage.
- Respect@Work’s downloadable Risk Assessment Tookit.
- Chief Executive Women’s extensive online risk register resource which also outlines the importance of psychosocial risks.
- Chief Exective Women Risk register webpage.
- Chief Executive Women’s CEW Respect is Everyone’s Business Resource Pack includes example wording and example mitigation measures.
- Champions of Change Coalition’s Disrupting the System – Sexual Harassment: Practical resources and tools. This resource includes an example workplace sexual harassment policy document.