General Practices may attract scrutiny by the Australian Human Rights Commission if unless we take steps to comply

In 2020, the Respect@Work: Sexual Harassment National Inquiry Report found that Australia lags behind other countries in responding to sexual harassment, revealing 39% of women and 26% of men experienced sexual harassment in Australian workplaces in the previous five years.

Since the legislative amendments to Sex Discrimination Act 1985 (Cth), came into full effect in mid-December 2023, all workplaces, including General Practices, must now eliminate unlawful behaviours, such as direct or indirect sex discrimination, sexual harassment, sex-based harassment, and victimisation of complainants or witnesses.

What has changed?

Previously, the onus was on victims to file formal complaints about unlawful behaviours, but significant barriers deterred people from speaking up. Under the new “positive duty”, practice owners should heed the serious repercussions for bystander silence and lack of preventive action, regardless of whether a complaint is made.

The recent change to the law also recognises the cumulative psychological harm associated with repetitive negative behaviour, such as offensive, intimidating or humiliating comments in hostile workplaces. Incidents commonly ignored by employers include failing to take notice of unwelcome touching, suggestive jokes, indirect or direct exclusion, unjustified criticism of people on the basis of sex, patronising or insulting remarks, intrusive questions about private life or physical appearance, and derogatory comments about sexuality, pregnancy, breastfeeding or menopause.

Why is General Practice at risk of scrutiny?

Females are expected to make up a significantly larger proportion of the GP workforce in the future, with the number of women in training about 58% compared to 39% of men, according to the RACGP Health of the Nation report.

However the RACGP notes that while there may be more female GPs, we are far from parity. In 2022, the total number of male GPs went up slightly to 19,900 and female GPs went up to 18,975, but the number of full-time-equivalent (FTE) females was significantly lower at 12,441, much lower than the 17,479 males who work full time. Notwithstanding that women are more likely to be primary care givers at home, this marked discrepancy may suggest there are major barriers preventing optimal participation of women in the Australian GP workforce, including the gender pay gap.

How can General Practices meet the new positive duty obligation?

The new positive duty and work health and safety obligations are outlined in detail by a number of relevant national organisations (Reference: Australian Human Rights Commission, Safe Work Australia, Fair Work Ombudsman).

In summary, General Practice must provide safe, respectful and inclusive environments, and take reasonable and proportionate measures to eliminate unlawful conduct by themselves, their employees, workers, agents, and other third parties, such as customers, clients, patients, suppliers or visitors. The definitions of unlawful sex discrimination, sexual harassment, sex-based harassment, and hostile work environments should therefore be made known to all.

Reasonable and proportionate measures by workplaces to prevent abuse may include but are not limited to:

• implementing clear and comprehensive policies
• providing comprehensive induction
• implementing a fair and confidential complaints-handling procedure to prevent victimisation of complainants or witnesses

What are the consequences of unlawful behaviours?

Perpetrators of unlawful behaviours can receive hefty penalties. In addition to fines, remedies and civil claims, perpetrators risk dismissal on the grounds of unlawful behaviours.

Under workplace law, GP employers can be held liable for wrongs committed by their employees. In fact, in most sexual harassment complaints heard by the AHRC or courts, compensation is paid by employers rather than individuals. There may be extensive fines for loss and psychological injury, but also hurt, humiliation and distress in victims and those who are victimised for reporting unlawful behaviours. Employers may also suffer reputation damage by being publicly named for failing to protect their employees.

In summary

It is urgent that all GP organisations assist their staff and GP members to understand their new responsibilities in relation to these significant changes, especially regarding positive duty. Unlawful conduct is a societal issue, which every General Practice must address for their patients and their teams – regardless of gender.

If this article has triggered any discomfort, please make a long consultation with your independent and trusted general practitioner,

Clinical Professor Leanne Rowe AM is a GP, a non-executive Director and co-author of Every doctor: healthier doctors = healthier patients.