Guidelines on Sexual Discrimination Positive Duty

The Australian Human Rights Commission (AHRC) has released guidance on what employers need to do to comply with new positive duty obligations in relation to sexual discrimination in the workplace.

The release of the AHRC’s Guidelines on Complying with the Positive Duty highlight the need for employers to familiarise themselves with their new obligations and how they can comply with the new positive duty.

In brief, the AHRC expects all relevant organisations and businesses to have measures in place to address each of the seven Standards outlined below. Read the guidelines in full by clicking here.

Leadership

Senior leaders understand their obligations under the Sex Discrimination Act and have up-to-date knowledge about relevant unlawful conduct.

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.

Senior leaders regularly review the effectiveness of these measures and update workers. Senior leaders are visible in their commitment to safe, respectful, and inclusive workplaces that value diversity and gender equality. They set clear expectations and role model respectful behaviour.

Culture

Organisations and businesses foster a culture that is safe, respectful, and inclusive and that values diversity and gender equality.

This culture empowers workers (including leaders and managers) to report relevant unlawful conduct, minimises harm and holds people accountable for their actions.

Knowledge

Organisations and businesses develop, communicate, and implement a policy regarding respectful behaviour and unlawful conduct.

Organisations and businesses support workers (including leaders and managers) to engage in safe, respectful, and inclusive behaviour through education.

Risk Management

Organisations and businesses recognise that relevant unlawful conduct is an equality risk and a health and safety risk. They take a risk-based approach to prevention and response.

Support

Organisations and businesses ensure that appropriate support is available to workers (including leaders and managers) who experience or witness relevant unlawful conduct. Workers are informed about the available support, and can access the support, regardless of whether they report the conduct.

Reporting and Response

Organisations and businesses ensure that appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to workers and other impacted people.

Responses to reports of relevant unlawful conduct are consistent and timely. They minimise harm to, and victimisation of, people involved. Consequences are consistent and proportionate.

Monitoring, Evaluation and Transparency

Organisations and businesses collect appropriate data to understand the nature and extent of relevant unlawful conduct concerning their workforce.

Organisations and businesses use the data they collect to regularly assess and improve the work culture, as well as to develop measures for preventing and responding to relevant unlawful conduct.

Organisations and businesses are transparent about the nature and extent of reported behaviours that could constitute relevant unlawful conduct concerning their workers and actions taken to address it.

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What is my positive duty as an employer under the Sex Discrimination Act?

These guidelines relate to the new statutory obligation in the Sex Discrimination Act is known as the positive duty. It requires organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:

  1. discrimination on the ground of sex in a work context;
  2. sexual harassment in connection with work;
  3. sex-based harassment in connection with work;
  4. conduct creating a workplace environment that is hostile on the ground of sex; and
  5. related acts of victimisation.

Changes to the law also give the AHRC new inquiry and enforcement powers to ensure that organisations and businesses are complying with their positive duty.

These changes were recommended in line with the Respect@Work Report. The Government implemented these changes after its election in 2022.

 

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Jessica Tinsley is General Counsel and Director of Workplace Relations at the Australian Chamber of Commerce and Industry

 

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