Strengthening Safety in Schools: The Role of the Positive Duty Under the Sex Discrimination Act
Recent amendments to the Sex Discrimination Act have introduced a 'positive duty' for employers, providing the IEU and its members with a new legal framework to tackle gendered harassment.
At a time when the IEU is receiving more reports from members about violence and harassment in schools, it is important to understand how these legislative changes spell out the responsibility of employers to foster a safe and respectful educational environment.
The Concept of Positive Duty
The 'positive duty' mandated by Section 28B of the Sex Discrimination Act requires schools to take proactive measures to prevent sexual harassment, discrimination, and related victimisation. This duty encompasses several forms of unlawful conduct:
Sex Discrimination: includes unequal pay for similar work, biased recruitment practices, or differential access to training and promotions based on sex.
Sexual Harassment: includes any unwelcome conduct of a sexual nature – whether physical, verbal, or digital – that makes a person feel offended, humiliated, or intimidated, such as inappropriate touching, suggestive comments, and sharing explicit images without consent.
Sex-Based Harassment: refers to demeaning behaviour related to a person's sex that isn't necessarily sexual, such as sexist remarks, derogatory comments about physical capabilities, or gender-based bullying.
Hostile Work Environment: occurs when actions or comments related to sex create an intimidating, hostile, or offensive working environment, often perpetuated through sexually explicit materials, sexist jokes, or persistent gender stereotyping.
Victimisation: involves retaliatory actions against an individual who has complained about discrimination or harassment, or has participated in an investigation regarding such complaints.
These obligations are aligned with Occupational Health and Safety (OHS) legislation, which requires employers to manage risks to the health and safety of employees and students, thereby providing a comprehensive framework to address both physical and psychological safety in educational settings.
Compliance with the Positive Duty
To meet the requirements of the 'positive duty', schools must implement a variety of practical actions:
Leadership Commitment: School leaders must visibly and actively work to eliminate unlawful behaviours, modelling respectful behaviour and ensuring consistent application of all policies.
Cultural Transformation: Schools must cultivate a culture that actively discourages discrimination and harassment. This involves regular awareness campaigns, inclusive policy formulations, and active engagement from the entire school community.
Knowledge and Training: It is essential to provide training for staff and students on what constitutes unlawful conduct, their rights under the law, and the procedures for reporting and dealing with complaints. This training should be developed in consultation with staff.
Risk Management: Schools need to identify and address specific risks associated with unlawful behaviours. This may include conducting regular risk assessments based on past incidents, surveys, or feedback, and developing risk mitigation strategies such as robust policies, training programs, and changes to the physical environment or to school schedules.
Support Structures: Schools must establish clear and accessible reporting mechanisms, offer support to victims and deal with complaints promptly and fairly.
Monitoring and Evaluation: There must be regular reviews of implemented policies and practices to ensure they remain effective and make necessary adjustments.
The amendments to the Sex Discrimination Act, coupled with OHS legislation, form a robust framework to address the increasing violence and harassment in schools.
As members of the IEU, your active participation in policy development, risk assessments, training, and transparent reporting is essential. It not only ensures compliance with these legal requirements but also plays a crucial role in building a safer and more inclusive educational setting.
If you, as an IEU member, believe that your employer is not sufficiently complying with the 'positive duty' or if the consultation and preventive measures are inadequate, you are encouraged to contact your Organiser. The IEU is here to support you in ensuring that all schools not only comply with the new legal standards but also genuinely commit to protecting all staff and students from discrimination and harassment.