3 ways that Culture Reviews help satisfy the Positive Duty to eliminate sexual harassment

Culture Reviews have increasingly become one of the key tools in the workplace toolbox for exploring ‘noise’ within an organisation or team.

Whether in response to a series of informal concerns, anonymous whistleblowers, conflicts and tensions, or other symptoms such as low morale or high turnover within a team, a well-conducted Culture Review can provide evidence-based insights into what is working and not working, and where potential behavioural (and legal) risks are lurking within a workplace.

On 12 December 2023, the positive duty on organisations to take ‘reasonable and proportionate measures’ to eliminate sexual harassment will become enforceable. Here are three key ways that Culture Reviews can help discharge the positive duty as highlighted by the recently published AHRC Guidelines:

1. To foster the right culture, you need to understand the culture

The Guidelines outline seven Standards that the AHRC expects organisations and businesses to meet to satisfy the positive duty.

Standard 2 – Culture – requires organisations and businesses to foster a culture that is safe, respectful and inclusive and that values diversity and gender equality. The aim is a culture that empowers workers to report conduct that falls short of expectations and that holds people accountable for their actions.

To foster a positive culture to meet these ends, it may be necessary to understand where the existing culture is falling short. A Culture Review can uncover cultures of inappropriate behaviour or poor practices – for example, by identifying where a blind eye is being turned to bad behaviour.

2. Risk management

Standard 4 – Risk management – acknowledges that conduct in breach of the Sex Discrimination Act 1984 (Cth), which the positive duty is designed to prevent, is an equality risk and a health and safety risk. The standard requires organisations and businesses to take a risk-based approach to prevention and response.

A Culture Review is an important proactive step available to employers when there is ‘noise’ about potential unlawful conduct, but before a formal complaint is raised. Culture Reviews can identify problems in the early stages when steps such as education and training might prevent harmful and risky behaviours from occurring and manifesting into complaints.

3. Why didn’t anyone say anything?

Standard 6 – Reporting and response – asks organisations and businesses to ensure that appropriate options are available to staff for reporting and responding to relevant unlawful conduct, and that these are regularly communicated to staff.

One area commonly explored in Culture Reviews is the level of knowledge and understanding workers have about avenues to raise and resolve concerns about inappropriate behaviour. In our experience, great insights can be gained about the reasons why workers may not be coming forward to report bad behaviour. By understanding the behaviours that form the existing culture, appropriate steps can be devised to inform how to foster the culture required to meet the positive duty.

The positive duty focuses on preventative measures. A Culture Review – conducted in a person-centred and trauma-informed way by skilled practitioners – can serve as an important tool in an organisation’s toolbox to catch potential risks before they develop and to meet the cultural obligations imposed by the positive duty.

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