December 2021 Building a preventative culture 2.4 A positive duty in federal discrimination laws In consultations in this Free and Equal inquiry, the Business Council of Australia commended the approach in WHS laws for its focus on encouraging prevention as part of the obligations imposed by those provisions. They identified that the focus on prevention builds a different mindset into all aspects of a business to ensure that your WHS obligations are met. They used the following example to explain this: a worker in a supermarket will be mindful of the potential for injury to result from a lettuce leaf being left on the shop floor and will automatically pick it up. They will not wait for someone to be injured or for a complaint before doing so. For discrimination law, a positive duty has the potential to shift mindsets in a similar way. An obligation to look for the environmental factors in a business that may lead to discrimination or harassment would lead to greater visibility of these factors and support practices that would avoid or address them upfront. The WHS model is also strongly grounded in consultation. The WHS Act provides for worker consultation, representation and participation relating to WHS matters.72 Because of the duty basis of the model, it is one that employers – PBCUs – now understand. Without such a duty there is a much-reduced imperative to get across the obligations embedded in discrimination laws. It was suggested in consultations in this inquiry that while employers are fully aware of their WHS obligations, some are not as aware of their obligations under discrimination laws – federally or at state and territory level. This is despite such laws existing for decades. In consultations, some business leaders also expressed their disquiet about a phenomenon that they have observed relating to high profile matters of harassment and discrimination in large companies. In media commentary about such matters, they observed that often people would comment that they were aware of previous incidents of harassment, or that the behaviour that was exposed publicly had precedents in those companies – another illustration of discrimination of a systemic kind. This suggests a failure of leadership in those settings: not learning and implementing change when problematic practices are identified; and not getting ‘ahead’ of known problems before they are formalised in complaints or negative publicity. But it also suggests that relying entirely on complaints-based processes will not be capable of addressing pervasive, entrenched issues where there is a problematic workplace culture. Many stakeholders referred to the Victorian and UK provisions in support of the introduction of a positive duty in federal discrimination laws. 70 FREE AND EQUAL An Australian Conversation on Human Rights