Amendment to the Sex Discrimination Act 1984 (Cth) (SD Act) in late 2022

The amendment to the SD Act imposed a positive duty on employers and persons conducting a business or undertaking (PCBUs) (duty holders) to eliminate, as far as possible:
• discrimination on the ground of sex in a work context;
• sexual harassment, or sex-based harassment, in connection with work;
• conduct creating a workplace environment that is hostile on the ground of sex; and
• related acts of victimisation (collectively, the unlawful conduct).
The Australian Human Rights Commission (AHRC) published ‘Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)’ (Guidelines) in August 2023 and The AHRC will use the Guidelines to assess compliance with the positive duty.
What is the Positive Duty under the SD Act?
Duty holders must take ‘reasonable and proportionate measures to eliminate, as far as possible’ unlawful conduct.
The AHRC expects that there will be measures in place to address each of the seven standards outlined in section 5.2 of the Guidelines. However, satisfying the positive duty will be determined objectively taking into account relevant matters including the size and nature of the business, available resources, practicability and cost.

How will the Positive Duty be Enforced?
From 12 December 2023, the AHRC is empowered to enforce compliance with the positive duty provisions and can commence an inquiry without the consent of the duty holder if it ‘reasonably suspects’ non-compliance . The AHRC will have the power to compel the production of information and examine witnesses.
The AHRC’s enforcement powers include:
• conducting inquiries and providing compliance recommendations;
• issuing compliance notices;
• applying to federal courts to enforce compliance notices; and
• entering into enforceable undertakings with duty holders.
The AHRC may offer to work voluntarily with the duty holder to assist them in meeting their legal obligations.

Guiding Principles and Standards
The AHRC acknowledges that there is no ‘one-size- fits-all’ approach to meet the positive duty. However, the AHRC expects duty holders to consider and apply four guiding principles summarised as follows:

  1. Consultation which includes ‘talking to workers about what they need for a workplace to be (and feel) safe and respectful, as well as the risks and mitigation options that they see to eliminate unlawful conduct’.
  2. Gender equality which requires that ‘all actions to implement the positive duty should contribute to achieving gender equality’.
  3. Intersectionality which includes recognising ‘that unsafe and disrespectful workplace behaviour may have a heightened impact on different people’ and “involves understanding that experiences of discrimination, harassment and victimisation are shaped and increased by overlapping structural inequalities’.  
  4. Person-centred and trauma-informed approaches that are about ‘making systems and processes understand and meet the needs of individuals’ and ‘require that workplace processes build in an understanding of trauma and how it affects people and avoid causing further harm’.

The Guidelines include seven standards for duty holders to meet to satisfy the positive duty summarised as follows:

  1. Leadership:Senior leaders:
    • understand their obligations and have up-to-date knowledge about unlawful conduct;
    • are responsible for ensuring that appropriate measures for preventing and responding to unlawful conduct are developed, recorded in writing, communicated to workers and implemented;
    • regularly review the effectiveness of these measures and update workers;
    • are visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality; and
    • set clear expectations and role model respectful behaviour.
  2. Culture: duty holders must foster a culture that is safe, respectful and inclusive and values diversity and gender equality. This culture empowers workers to report unlawful conduct, minimises harm and holds people accountable for their actions.
  3. Knowledge: duty holders must:
    • develop, communicate, and implement a policy regarding respectful behaviour and unlawful conduct; and
    • support workers to engage in safe, respectful and inclusive behaviour through education on expected standards of behaviour, identifying behaviours that constitute unlawful conduct, consequences for such conduct and rights and responsibilities (including their role in preventing and responding to unlawful conduct).
  4. Risk Management: duty holders recognise that unlawful conduct is an equality and a health and safety risk and take a risk-based approach to prevention and response.
  5. Support: duty holders ensure that appropriate support is available to workers who experience or witness unlawful conduct. Workers are informed about and can access the support.
  6. Reporting and Response: duty holders ensure that appropriate options for reporting and responding to unlawful conduct are provided and regularly communicated to workers and other impacted people. Responses to reports of unlawful conduct are consistent and timely. They minimise harm to, and victimisation of, people involved. Consequences are consistent and proportionate.
  7. Monitoring, Evaluation, and Transparency: duty holders:
    • collect data to understand the nature and extent of unlawful conduct in their workforce;
    • use the data to regularly assess and improve the work culture, and to develop measures for prevention and response; and
    • are transparent about the nature and extent of reported behaviours that could constitute unlawful conduct and actions taken to address it.

Refer to the Guidelines for a more detailed explanation of the above principles and standards.
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Employer Assist provides advice on all aspects of employment law. Please contact Employer Assist on 1300 735 306 or aaaa@employerassist.com.au if you have any questions relating to this article or to discuss any employment issues that arise in your business.

This document is intended for general information purposes only and should not be regarded as legal advice. Please contact Employer Assist if you require advice.
1 Sex Discrimination Act 1984 (Cth), s 47C(2).
2 Ibid s 47C(1).
3 Ibid s 47C(6).
4 Australian Human Rights Commission, Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (August 2023) 21-22.
5 Ibid 24-25.