New Obligations for Business Owners & Employers: What is the ‘Positive Duty’ in the Sex Discrimination Act?
There has recently been a change to the Sex Discrimination Act 1984 (Cth) that all employers and business owners need to be aware of.
From December 2023, the Australian Human Rights Commission and Australian Courts will be empowered to investigate and enforce a new ‘positive duty’ on business owners and employers.
What is the ‘Positive Duty’?
Going back to December 2022, certain changes to the Sex Discrimination Act 1984 (Cth) introduced what they called a ‘positive duty’ for business owners and employers.
In basic terms, the positive duty is a legal obligation to take proactive and meaningful action to eliminate (as far as possible) various sex-based unlawful conduct from occurring in the workplace. This conduct includes:
Sex discrimination,
Sexual harassment,
Sex-based harassment,
Behaviours that create a hostile workplace environment on the grounds of sex,
Related acts of victimisation.
Importantly, this duty applies to all business owners and employers, regardless of the size and nature of their business. In the case of businesses without employees, they will only be required to meet aspects of the duty that are directly applicable to them.
The underlying intent behind this change is to help create safe, respectful, and inclusive workplaces for everyone, regardless of a person’s sex, by requiring employers to implement preventative measures.
What do business owners and employers need to do to meet this new requirement?
It’s about meeting the requirements of this ‘positive duty’.
However, satisfying the positive duty will look different for everyone.
This is because the steps taken will depend upon the size and nature of the business, the resources available, the cost of preventative measures, and other relevant factors such as workplace culture and location.
Guiding principles to help
However, there are some guiding principles that business owners and employers should use to determine the actions they need to take:
They must consult with employees about what they need for a workplace to be and feel safe, respectful, and inclusive.
They must ensure all actions taken contribute to achieving gender equality.
They must consider how aspects of a person’s identity intersect with and impact one another.
They must ensure that the workplace systems, policies, and procedures affirm the safety, respect, and inclusiveness of the people who they affect, and support their healing.
Standards to pay attention to
There is also a set of standards that business owners and employers should aim toward to fulfil their positive duty:
Leadership: Employers are to be held ultimate responsibility for the legal compliance of the business and are accountable for meeting the positive duty by eliminating sex-based unlawful conduct.
Culture: Employers must ensure the values, attitudes and behaviours affirmed by the business set the standard for what is acceptable and how sex-based unlawful conduct will be managed
Knowledge: Employers must provide education about the nature of sex-based unlawful conduct; what causes it; the extent to which it occurs; the harm it causes; and skills on how to identify and respond to it.
Risk management: Employers must implement control measures that relate to the physical work environment to minimise the risk of sex-based unlawful conduct and reduce risks to the psychological and physical health and safety of workers.
Support: Employers must provide easily accessible information about the internal and external support systems available to them to reduce the harm of sex-based unlawful conduct.
Reporting and response: Employers must implement a clear process for making and handling reports, ensuring all workers are aware of reporting options, and that these reports are treated seriously and sensitively.
Monitoring, evaluation, and transparency: Employers must conduct regular reviews of these measures to ensure they remain effective by collecting and analysing data and using it to make updates that will eliminate sex-based unlawful conduct.
For more information
If you are an employer and would like more information, the Australian Human Rights Commission has published a series of helpful materials for business which can be found here, including example actions you can take to ensure that you are meeting the duty come December 2023.
This article is general in nature and is not legal advice. If you need help with an Employment Law matter or require assistance with updating your workplace procedures and policies, Voice Lawyers hear you.
We help people navigate the complexities of workplace laws with confident, practical advice.
If you would like to attend one of our Employer breakfasts or have one of our lawyers present on the Positive Duty requirements or provide other workplace training email us at voice@voicelawyers.com, give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.
