While it’s been in force for over a year, now is a good time for all businesses to check how they are meeting their obligations under the Sex Discrimination Act 1984 (Cth) to ensure ongoing compliance with the “positive duty.”
The positive duty was introduced into federal law in December 2022 through the Respect at Work legislation. It requires organisations and businesses to take proactive and meaningful steps to prevent unlawful conduct such as sexual harassment, sex-based harassment, sex discrimination, and hostile work environments from occurring—not just respond after the fact.
This reform stems from a key recommendation of the Respect@Work Report, led by former Sex Discrimination Commissioner Kate Jenkins, which called for a shift from a reactive complaints-based system to one that places responsibility on employers to create safe, inclusive and respectful workplaces.
As of 12 December 2023, the Australian Human Rights Commission (AHRC) has been given stronger powers to investigate and enforce compliance with this duty. These powers apply to all businesses and organisations in Australia—regardless of size—including sole traders, small businesses, large companies, and government bodies.
Importantly, the positive duty does not only apply to employees. It also extends to contractors, labour hire workers, volunteers, apprentices, outworkers, students on work experience, and more.
Employers and persons conducting a business or undertaking (PCBUs) must take reasonable and proportionate measures to eliminate unlawful conduct as far as possible. What is “reasonable” will depend on factors such as the size of the business, its resources, and the nature of the work being performed.
It’s important to note that the positive duty doesn’t replace the existing laws that make sexual harassment and sex discrimination unlawful—it builds on them. Employers remain vicariously liable for unlawful conduct that occurs in the workplace, but now the expectation is that steps are taken to prevent it from happening in the first place.
If you run a business or are responsible for managing staff, it is important to regularly assess whether your workplace culture, systems, training, and complaint-handling procedures align with these new expectations. Being proactive is not just a legal requirement—it’s a vital part of creating a safe and respectful workplace for everyone and reviewing current practices to ensure ongoing compliance is important.
Reach out to the Employment Law team at Commins Hendriks if you require any guidance on any employment related matter.
Please contact Commins Hendriks to make an appointment for advice specific to your situation.
The advice provided above is general in nature and is not formal legal advice.