From December 2023, employers in Australia have a positive duty to eliminate, so far as is practicable, discrimination on the basis of sex, sexual harassment, and sex-based harassment and the regulator has specifically identified the retail sector as one of three sectors of focus.  This is a significant increase in an employer’s obligations and a key feature of a raft of diversity and inclusion changes coming into effect across Australia in the ESG space. 

The cornerstone of the Respect@Work reforms is the new positive duty, together with new powers of the Australian Human Rights Commission (Commission) to enforce compliance with that duty.  The Commission has announced that the retail sector (together with mining and legal sectors) will be targeted as part of the implementation of these new enforcement powers. 

For retailers operating in Australia, understanding and fulfilling the positive duty is critical in managing legal, compliance and reputational risk.  Retailers face specific pressures in meeting this duty given the need to consider workers, the role of customers in their treatment of workers and the unique features of retail stores and outlets.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) (Respect@Work Act) made significant changes to three federal ESG instruments: the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act), Australian Human Rights Commission Act 1986 (Cth) and Workplace Gender Equality Act 2012 (Cth).  The cornerstone of the Respect@Work reforms is the new positive duty, together with new powers of the Commission to enforce compliance with that duty. 

Commission’s Guidelines on the Positive Duty

The Commission has recently published its most authoritative resource for complying with positive duty. The Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (Guidelines) provide practical guidance on the scope of the positive duty and establish four Guiding Principles and seven Standards that employers must apply when implementing proactive measures to meet the positive duty to eliminate sexual harassment, sex-based harassment, sex discrimination, conduct creating a workplace environment that is hostile on the ground of sex and related acts of victimisation, as far as possible.

While the Guidelines are not legally binding, the Commission has stated that it will use them to assess compliance with the positive duty when its enforcement functions commence from 12 December 2023. 

Embedding the Standards and Guiding Principles

Central to the Guidelines are four Guiding Principles and seven Standards that the Commission expects employers to embed within their legal framework. 

In implementing the Standards and Guiding Principles, the Commission acknowledges that a tailored approach must be adopted. Relevantly, the Commission is clear that ‘a one-size fits all’ approach across all organisations is not appropriate and careful consideration of what practical actions are necessary to comply with the Seven Standards and Guiding Principles must be undertaken.  

For retailers, that means that the Standards and Guiding Principles will need to be adapted for the specific features of a retail workplace including that the specific implementation may differ across different cohorts within its workforce. For example, implementation of risk management for a head office is likely to be very different to risk management in a retail store. 

Standards

The seven Standards are summarised below, together with some practice guidance for retailers. The Guidelines also provide detailed practical actions that employers can take to meet the relevant Standard.  

• Standard 1 – Leadership: Employers should ensure that senior leaders with management responsibilities understand their obligations under the Sex Discrimination Act and their responsibilities for developing, communicating, and regularly updating proactive measures to prevent and respond to relevant unlawful conduct, and promote safe, inclusive workplaces that value diversity and gender equality by setting clear expectations and modelling respectful behaviour.
  • For retailers this means ensuring that senior leaders, and also store managers, are regularly speaking to their teams about these issues and ensuring that leaders who do not model respectful behaviour are appropriately counselled and, if necessary, removed.
• Standard 2 – Culture: Employers should foster an environment characterised by safety, respect inclusivity and an appreciation for diversity and gender parity to empower employees to report instances of unlawful behaviour, mitigate harm and hold perpetrators accountable. 
  • For retailers this means ensuring that senior leaders are paying close attention to gender balance and diversity in recruitment, adopting respectful and inclusive language in interactions with workers and customers and encouraging workers to call out disrespectful behaviour by colleagues and customers.
• Standard 3 – Knowledge: Employers should establish and enforce a policy addressing disrespectful behaviour and unlawful conduct and facilitate education for all workers to promote safe, inclusive, and respectful behaviour.
  • For retailers this means developing and communicating a policy which clearly sets out standards of behaviour expected in the workplace, provides that behaviour in contravention of the positive duty is unlawful and won’t be tolerated in the workplace, specifies avenues for reporting and notes the consequences for engaging in unlawful conduct, including where the customers are engaging in the unlawful conduct.
• Standard 4 – Risk Management: Employers need to understand the risks to equality and health and safety that are posed by unlawful conduct and therefore should adopt a risk-oriented approach for prevention and addressing such conduct.
  • For retailers this means ensuring that senior leaders and also store managers are actively understanding and identifying the risks, nature and extent of unlawful conduct specific to their workplace and sector, including by monitoring workplace trends.
• Standard 5 – Support: Employers should ensure accessible support is available to all workers who experience or witness unlawful conduct, irrespective of whether reports are made.
  • For retailers this means ensuring that internal (and, where appropriate, external specialist support) options are readily communicated and made available to workers, including employee assistance programs.
• Standard 6 – Reporting and response: Employers should establish clear reporting and response channels which are regularly communicated to workers and affected individuals and enable them to respond quickly and consistently to reduce harm and victimisation and ensure proportionate consequences.
  • For retailers this means ensuring that workers are provided with clear reporting and resolution options and consistent, timely and trauma-informed approaches are adopted to address unlawful behaviour, including consistent consequences being applied where appropriate.
• Standard 7 – Monitoring, evaluation and transparency: Employers should gather data on unlawful conduct within their workplace to assess and enhance workplace culture and develop preventative measures. Transparency about the nature and extent of reported behaviours that could constitute unlawful conduct should be observed.
  • For retailers this means collecting data on leadership, culture, risks arising from and characteristics of the retail industry, reporting, and provision of appropriate support and response.

Guiding Principles 

In implementing the seven Standards, employers must have regard to following four Guiding Principles to ensure they tailor the action they are taking to embed the Standards to the individual needs of their business.

• Guiding Principle 1 – consultation: The approach should include consultation with workers to ensure that actions taken are guided by those impacted or potentially impacted by unlawful conduct.
• Guiding Principle 2 – gender equality: The approach should advance gender equality so that people of all genders have equal rights, rewards, opportunities and resources.
• Guiding Principle 3 – intersectionality: The approach should acknowledge and address the interrelationship that exists between systemic issues and factors including race, religion, gender, sexual orientation and disability and the risks and impacts of unlawful conduct.   
• Guiding Principle 4 – person-centred and trauma-informed approach: The approach should be person-centred and trauma-informed so that workplace systems, policies and practices support people’s individualised needs and prevent causing further trauma. 

Impacts on Retailers

The Guidelines clearly note that compliance with the positive duty requires consideration of risks posed by not only workers but also third parties. Relevantly, the positive duty extends to conduct perpetrated by not only employees, workers and agents but also customers, clients and members of the public towards employees and workers in connection with their work.

According to surveys conducted by the Commission in 2019, customers were responsible for engaging in more than one third of sexual harassment incidents in the fast-food and retail industries and 1 in 5 members of the Shop, Distributive and Allied Employees Association (a trade union covering retail workers) reported that they had been sexually harassed by a customer at work, with that figure far higher for female workers. 

For these reasons, the Commission expects retailers to implement greater proactive measures to eliminate unlawful conduct in environments where workers have significant contact with third parties in the workplace. Of course, the reasonable and proportionate measures required to eliminate relevant unlawful conduct depends on the size, nature and individual circumstances of the retailer. These measures may include: 

• undertaking risk assessment processes and determining appropriate control measures to identify and assess sexual harassment risk factors involved in client and customer interaction, and continuously evaluating workplace arrangements, conditions and culture to prevent this from occurring as far as possible; and
• strong governance and organisational leadership measures demonstrated by:
  • clear identification and communication of standards of behaviour required of workers and third parties in written policies, workplace training and signage in the workplace; and
  • senior managers setting clear expectations and modelling respectful behaviour in interactions with workers and third parties in the workplace; and
  • senior managers responding appropriately to relevant unlawful conduct engaged in by clients or customers, including refusing service, entry or promotions to customers or clients who engage in unlawful conduct.

It is imperative that retailers understand these wide-ranging obligations under the positive duty and implement individualised measures which proactively prevent unlawful conduct, particularly given the focus of the Commission. 

The DLA Piper team would be very happy to talk to any retailers about complying with these new obligations and how retailers can be prepared for targeting by the Commission.