Alert: How to Satisfy the New Positive Duty on Employers

Late last year, the Commonwealth Sex Discrimination Act 1984 was amended to impose a positive duty on employers to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, and a hostile workplace environment on the grounds of sex. From 12 December 2023, the Australian Human Rights Commission (AHRC) has new powers to investigate and enforce compliance with the positive duty. This includes the power to compel the production of documents, to issue compliance notices, and to make applications to the Federal Courts. To this end, the AHRC recently published guidelines setting out its expectations of the steps employers must take in order to comply with the positive duty.

The AHRC Guidelines

According to the guidelines published by the AHRC, there is no ‘one-size-fits-all’ approach to meeting the positive duty. Instead, whether an employer has satisfied its positive duty must be determined having regard to a number of factors, including the size and nature of the business, the resources of the employer, and the practicability and cost of measures to eliminate unlawful conduct.

That being said, the AHRC expects all employers to consider and apply the guiding principles of consultation, gender equality, intersectionality, and taking person-centered and trauma-informed approaches to satisfying the positive duty.

In addition, employers are expected to have met the 7 standards provided by the AHRC, which include:

• Leadership: Senior leaders are responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented.
• Culture: Fostering a culture that is safe, respectful and inclusive and that values diversity and gender equality.
• Knowledge: Developing, communicating and implementing a policy regarding respectful behaviour and unlawful conduct, which contains a range of specified information.
• Risk Management: Employers should take a risk-based approach to the prevention of unlawful conduct and response.
• Support: Employers should ensure that appropriate support is available to workers who experience or witness unlawful conduct, such as an EAP.
• Reporting and Response: Employers should ensure that appropriate options for reporting and responding to unlawful conduct are provided and regularly communicated to workers and other impacted people.
• Monitoring, Evaluation and Transparency: Employers should collect data regarding unlawful conduct at their workplace, and use that data to regularly assess and improve the work culture, as well as to develop measures for preventing and responding to unlawful conduct.
  

Implications for Employers

Traditionally, employers have sought to discharge their obligations regarding preventing unlawful discrimination and sexual harassment at their workplace by issuing a written policy and providing occasional staff training. However, the guidelines published by the AHRC make it clear that not only is it likely that the contents of most written policies are inadequate and need to be updated, but that having a policy and providing occasional training is nowhere near sufficient for employers to discharge their positive duty. Rather, a far more holistic approach needs to be taken.