New positive duty enforcement powers for the Australian Human Rights Commission & how businesses can comply to prevent sex discrimination
As of 12 December 2023, the Australian Human Rights Commission (the AHRC) has new powers under the Sex Discrimination Act 1984 (Cth) (SD Act) to investigate and enforce compliance with the positive duty of employers to take action to prevent unlawful workplace conduct. The AHRC now acts as the regulator of the positive duty.
The changes to federal anti-discrimination laws arose from the key recommendation in the March 2020 'Respect@Work Report' of the AHRC led by former Sex Discrimination Commissioner Kate Jenkins.
The effect of the new positive duty is that it now shifts the onus to organisations to ensure they prevent discrimination, harassment or victimisation.
In 2023 the AHRC released its Guidelines for Complying with the Positive Duty and Resource for Small Business to provided business with information on how they can comply with their legal obligations under the new laws.
It is essential that all organisations understand the guidance material from the AHRC as this is a factor the AHRC will consider when assessing if an organisation has complied with its obligations under the SD Act. The key takeaway is that organisations need to consider what policies and procedures they will implement to comply with their legal obligations.
What is the positive duty under the Sex Discrimination Act
Under the SD Act employers now have a positive duty to take reasonable and proportionate measures to eliminate unlawful conduct in the form of discrimination on the basis of sex/gender in a work context and particularly the following :
- discrimination on the grounds of sex in a work context;
- sexual harassment in connection with work;
- sex-based harassment in connection with work;
- conduct creating a workplace environment that is hostile on the grounds of sex; and
- related acts of victimisation.
The amendments to the SD Act do not replace the existing provisions that make sexual harassment and sex discrimination unlawful, but rather they create additional obligations for employers to proactively prevent sexual harassment.
The positive duty extends to the conduct of third parties such as customers and clients.
Who does the positive duty apply to?
The new obligations under the SD Act apply to businesses of any size in Australia including sole traders, the self-employed, government, companies and other organisations.
The positive duty applies to:
- contractors;
- an employee of a labour hire company assigned to perform work in a 'host' person's business;
- an outworker, such as a home-based worker;
- a gig worker;
- an apprentice or trainee;
- a student during work experience; and
- volunteers
How to comply with the positive duty?
The AHRC guidance material outlines seven standards and four guiding principles that provides guidance to employers on the steps they need to take to eliminate unlawful conduct.
What amounts to "reasonable and proportionate" measures to eliminate unlawful conduct will depend on the size of an organisation, its resources, cost and whether the measures are practicable.
GUIDING PRINCIPLES
| Guiding Principle | How to comply | |
| 1. Consultation | Consultation involves consulting with staff so that the organisation is informed of any issues affecting staff and whether measures are required to eliminate unlawful conduct. | Businesses should consult with their staff and ensure that all groups in the organisation are heard and their feedback considered. |
| 2. Gender Equality | Gender equality requires that people from different genders have equal rights, pay and opportunities. | Businesses should take positive steps to achieve gender equality such as by aiming for equal outcomes, not just equal treatment. |
| 3. Intersectionality | Intersectionality refers to the different aspects of workers' identities that intersect with and impact one another. | Understand how staff members' experiences of discrimination, harassment and victimisation are shaped and increased by overlapping structural inequalities to address risk factors and intersecting disadvantages. |
| 4. Person-centered and Trauma Informed | This principle involves a genuine consideration of individual needs, values and preferences, and how trauma may affect individuals. | Consider individual needs and the impacts that work decisions may have on them. |
SEVEN STANDARDS
| 1. Leadership | Senior leaders are responsible for and should take active steps to eliminate unlawful conduct. Examples of steps that leaders should take to meet this standard include adopting and 'role modelling' respectful behavior, and ensuring appropriate consequences for staff who engage in unlawful conduct. |
| 2. Culture | A culture that fosters safety and respect and advances gender equality and diversity underpins the elimination of unlawful conduct. Examples of action that organisations can take include evaluating gender balance and diversity when recruiting staff, and ensuring that working environments are safe and respectful. |
| 3. Knowledge | Organisations should ensure that workers are educated on respectful behaviour and unlawful conduct, as well as the positive duty. |
| 4. Risk Management | Organisations should identify and assess the risk of unlawful conduct, implement control measures, and appropriate response action. |
| 5. Support | Organisations should ensure that appropriate support is available to workers who experience or witness unlawful conduct. This can include providing staff with easily accessible information, and ensuring that support is available internally and externally. |
| 6. Reporting and Response | Appropriate actions for reporting and responding to unlawful conduct should be provided to staff including multiple reporting avenues. This can include ensuring that reporting processes are confidential and can be done anonymously. |
| 7. Monitoring, Evaluation and Transparency | Organisations should monitor when, where and how unlawful conduct has occurred. Steps that organisations can take to ensure compliance with this principle include collecting data to understand the nature and extent of unlawful conduct, and using the data to assess and improve work culture. |
What are the consequences of non-compliance?
From 12 December 2023 the AHRC is equipped with a range of new regulatory tools to monitor, assess and enforce compliance with the positive duty.
Employers can be held accountable for any unlawful actions by their employees related to their work duties. Although only a court can ultimately determine whether an organisation took "all reasonable steps", the AHRC has the authority to:
- initiate inquiries if there are concerns an organisation is not adhering to the positive duty;
- make recommendations after investigating whether an organization has adhered to the positive duty;
- issue official notices on actions organisations must take to comply with the positive duty;
- refer matters to the federal courts to ensure compliance with notices;
- engage in legally binding agreements with organisations specifying actions they must take or should avoid.
Model Code of Practice: Sexual and Gender-Based Harassment
Safe Work Australia has released a new model code regarding sexual and gender-based harassment that provides guidance to organisations on how to eliminate or minimise the risk of sexual and gender-based harassment at work.
As sexual and gender-based harassment often occurs alongside other psychosocial hazards, organisations should consider the interaction between these hazards when managing risks and also refer to the Safe Work Australia Model Code of Practice on Managing Psychosocial Hazards.
Further advice
MDC Legal advises clients on all aspects of compliance with anti-discrimination laws and preventing and addressing sexual harassment and discrimination. We provide workplace training, Management Guides and Employee Handbooks covering compliance requirements under new legislation. We also undertake workplace audits for compliance assessments and workplace investigations and disciplinary processes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
