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Risky Business: Positive Duty under the Sex Discrimination Act

Positive Duty under the Sex Discrimination Act

Daleen Van Der Merwe and Stephany Dobbelstein

The Federal Government changed the law in December 2022 in response to the continual rise of sexual harassment as a 'hot topic' issue in Australian workplaces, and as part of the ongoing response to the Sex Discrimination Commissioners Respect@Work Report. The new positive duty in the law imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work.

Previously, under the Sex Discrimination Act, an employer would be vicariously liable for sexual harassment by an employee or agent, where the sexual harassment occurred ‘in connection with’ the employee’s employment or agent’s duties.

These provisions only arise once a complaint has been made. A positive duty expands employer obligations from a reactive, complaints-based approach to a duty to proactively take steps to prevent (as far as possible) sexual harassment and sex discrimination, occurring in the first place.

The Australian Human Rights Commission (AHRC) has developed practical guidance materials to help organisations and businesses to understand their responsibilities and the changes they may need to make to meet these new legal obligations.

What is the Risk?

There is no exemption under this law - not even for small business.  No matter the size of the business, if reasonable steps are not taken to eliminate sexual harassment and sex-based harassment in the workplace, the employer could be held liable and face considerable financial and reputational damage to the business.

The Commission has new powers to investigate and enforce compliance with the positive duty. These powers commenced in December 2023. For example, the AHRC will be able to initiate an inquiry into an employer’s compliance with the positive duty if it ‘reasonably suspects’ that a person is not complying. This view may be formed by information or advice disclosed by other agencies or regulators, impacted individuals, unions or worker representatives, or media reporting, for example.

It is important to note the protection applies to workers including employees, contractors, work experience students and volunteers, future workers, and people conducting a business or undertaking.

How can you identify and assess the risk?

The Commissions’ guidelines recommend that senior leaders should seek to understand their obligations under the Sex Discrimination Act; take precautions to avoid unlawful behaviours; and inform workers what standards of appropriate behaviour are required of them in the workplace. 
This important change requires organisations and businesses to shift their focus to actively preventing workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.
Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must meet the positive duty. This includes sole traders and the self-employed, small, medium and large businesses, and government agencies.
Under the Sex Discrimination Act and the Equal Opportunity Act, organisations and businesses now have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

  • Discrimination.
  • Sexual harassment in connection with work.
  • Sex-based harassment in connection with work.
  • Creating a workplace environment that is hostile.
  • Related acts of victimisation. 
The Commission has identified six minimum standards / guidelines that organisations must meet to comply with their positive duty to eliminate discrimination, sexual harassment and victimisation.
  1. Knowledge
Organisations understand their obligations under the Equal Opportunity Act and have up-to-date knowledge about discrimination, sexual harassment and victimisation. 
  1. Prevention plan / policies and procedures
Discrimination, sexual harassment and victimisation are prevented through the development and implementation of an effective prevention plan. The plan should outline the legal requirements in any service delivery by the organisation, in addition to a policy that covers the workplace and conduct of the employer and employees. It will include a SWOT analysis, documenting the plan, outlining the objectives, consulting staff, developing and updating policies, a communication strategy and planning for resistance and non-adherence. 
  1. Organisational capability / Stakeholder awareness and understanding
Leaders drive a culture of respect by building organisational capability. This may involve communication, training, role modelling and supporting all stakeholders.
  1. Risk management
The key to eliminating sexual harassment is the ability to identify and manage risk associated with this behaviour in the workplace. It is important to plan and take steps to eliminate or control workplace risk factors. 
  1. Reporting and response / Handling complaints
Discrimination, sexual harassment and victimisation are addressed consistently and confidentially to hold perpetrators to account and responses put the victim/survivor at the centre. 
  1. Monitoring and evaluation / Keeping a record

Outcomes and strategies are regularly reviewed and evaluated for continuous improvement.

How can a Moore Advisor help?

We can help you set a framework based on the minimum standards/guidelines, review and update your documents (contracts, policies and procedures), provide you with templates and even assist you with communication and training all stakeholders within the legal framework to ensure your compliance.