The positive duty under the Sex Discrimination Act 1984 (Cth)

What are the new laws?

Section 47C of the Sex Discrimination Act 1984 (“the Act”) requires an employer or a person conducting a business or undertaking (“PCBU”) to take reasonable and proportionate measures to eliminate, as far as possible, relevant unlawful conduct.

This means that employers and PCBUs now have a positive duty to prevent unlawful sexual conduct in the workplace rather than only responding to allegations of such conduct.

Who is an employer and a PCBU?

An employer includes a person who:

• Employs another person, including by way of part-time or temporary employment; and/or
• Engages another person to perform work under a contract for services (for example, a contractor).

A PCBU is any person conducting a business or undertaking and includes working arrangements and structures such as:

• Public and private companies;
• Partners in partnership;
• Franchisors and franchisees;
• Owners and operators of a business;
• Principal contractors and head contractors; and
• Sole traders and self-employed persons

What is a positive duty?

The positive duty creates a legal obligation on an employer or a PCBU to eliminate any relevant unlawful conduct.

The overarching aim of the positive duty is to prevent any unlawful conduct from occurring in the first instance, so it is no longer adequate for an employer or a PCBU to simply respond to reports as they arise.

What conduct is covered by the positive duty?

Employers and PCBUs are required to take reasonable and proportionate measures to eliminate, as far as possible: 

• 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 ground of sex; and
• Related acts of victimisation.

The positive duty requires measures be taken by employers and PCBUs to eliminate, as far as possible, unlawful conduct being engaged in by themselves, by their employees, workers, and agents, and in some cases, by third parties towards employees and workers.

Powers of the AHRC and enforcement of the positive duty

The AHRC can:

• Conduct inquiries, with or without consent, into compliance with the positive duty by an organisation or business and provide recommendations to achieve compliance. This means that organisations and businesses can now be held accountable even in instances where no formal complaint has been made to the AHRC;
• Issue a compliance notice specifying action that an organisation or business must take, or refrain from taking, to address any non-compliance;
• Apply to the federal courts for an order to direct compliance with a compliance notice;
• Enter into enforceable undertakings with an organisation or business under which the organisation or business agrees to do, or refrains from doing, certain things; and
• Compel the production of information or documents as well as examining witnesses.

If an employer or PCBU is contacted by the AHRC or receives a compliance notice in respect of alleged non-compliance, it is recommended that you take action. If you receive an order from the federal courts, it is recommended that the employer or PCBU seek independent legal advice.

How to be compliant

When investigating compliance, the AHRC will take into consideration:

• The size, nature and circumstances of the business or undertaking: This may include the number of workers, the nature of the work, the location of the workplace, specific risk factors which may be present in the organisation or business, and whether any policies or procedures around sexual harassment are in place;
• The resources of the organisation or business: This may include how a business has used its budget to implement proactive and preventative measures, whether the allocated amount was sufficient having regard to the risks of unlawful conduct, and what, if any, access a business has to human resources and legal advice;
• The practicability and cost of measures to eliminate unlawful conduct: The AHRC recognises that the practicability and affordability of introducing new measures will differ for all businesses, however, this may include communicating expectations to workers regularly, utilising free services, referring to existing guidance materials, and/or contacting the AHRC; and
• Any other relevant matters: This may include the AHRC investigating the culture of a workplace, levels of supervision, and whether the organisation or business has complied with other applicable laws previously.

HIA recommends members consider introducing HR reporting lines and documents, training modules, an anonymous complaints procedure, and an employee assistance program (EAP).

The Australian Human Rights Commission have developed Guidelines for complying with the positive duty. The Guidelines provide detailed information about what it means to take reasonable and proportionate measures and also provide examples of practical actions that organisations and businesses can take to help them comply with the new laws.