Featured articles from our Aged Care Today magazine authored by our Ageing Australia team and specialists within the aged care sector.
There are two key amendments you should know about:
The positive duty requirement is for all employers to take “reasonable and proportionate measures” to eliminate the following in a work context: sexual harassment, sex discrimination, sex-based harassment, conduct that creates a hostile workplace environment on the ground of sex; and victimisation of persons in certain circumstances.
The requirement to take “reasonable and proportionate measures” lifted the bar for compliance higher than it has been before. As a result, it is currently possible for an employer to be in breach of this legislation even if there is no reported incident of sexual harassment in their workplace.
Under the most recent changes, the AHRC gained the power to conduct enquiries and provide recommendations, issue compliance notices, apply to federal courts for an order to direct compliance with a compliance notice, and enter into an enforceable undertaking.
A complaint to the AHRC can lead to it becoming involved and exercising its new powers.
It is important for aged care providers to have a plan in place on how they are going to reach compliance (if they are not already at that point) and how they are going to maintain compliance over time.
As with many operational areas of aged care, compliance is something that has to be proactively managed to be maintained. The AHRC has issued Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) which sets out four Guiding Principles and seven Standards for how they expect employers to comply with the legislation.
This can be found on the AHRC website along with a number of other resources. It is recommended that aged care providers utilise this document when creating, implementing and maintaining a compliance plan. The Respect@Work website also has resources that can assist providers with compliance.
The risk assessment AHRC Standard when applied in aged care has its own particular dynamics. Aged care employees can work with residents and clients and interact with their friends and family while they work. Even though these individuals are not employees of the provider, their actions towards employees can result in a breach of the positive duty requirement on the provider as an employer.
Aged care employees can also be working in client’s homes and, as with other work health safety risks, the provider has less control over the risks that exist in their working environment. With these challenges it is especially important for providers to undertake effective risk assessments so that hazards can be identified and actions taken to prevent staff from being exposed to them.
To help our members to achieve compliance with the new legislation, ACCPA has partnered with the Australian Business Lawyers and Advisors (ABLA) to offer to ACCPA members the Managing Sexual Harassment ‘Positive duty’ Toolkit at a discounted price.
It features a ‘How-to Guide’ on managing sexual harassment and sex-based harassment ‘positive duty’ in the workplace; seven short instructional videos to guide you through the process; and 15 tools including checklists, templates, processes to follow, draft emails and a policy document to download and use.
The feedback so far from ACCPA members is that they have found the toolkit to be very useful and it has saved them much time and research that would have been needed to prepare the documents from scratch.
What’s most important, is that providers stay informed, up-to-date, and compliant with this new legislation.
Claire Bailey, Head of Workplace Relations, ACCPA
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