Are You in Compliance with the New ‘Positive Duty’?

In December 2022, the Sex Discrimination Act 1984 (Cth) was amended to introduce a positive duty on employers and persons conducting a business or undertaking (PCBUs) to eliminate:

• workplace sexual harassment, sex discrimination and sex-based harassment;
• conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and
• victimisation on the ground of sex.

This new positive duty requires employers and PCBUs to shift their focus to actively preventing workplace sexual harassment, rather than responding only after it occurs. It imposes a legal obligation on employers and PCBUs to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination and sex-based harassment.

On 13 December 2023, the Australian Human Rights Commission will have the power to investigate and enforce compliance with the positive duty. The Commission’s new functions and powers include:

• Conduct inquiries into compliance with the positive duty.
• Provide recommendations to employers to achieve compliance.
• Issue and enforce compliance notices.
• Apply to the federal courts for an order to direct compliance with a compliance notice.
• Force employers to enter into enforcement undertakings.

To comply with the positive duty, employers and PCBUs should:

• Ensure your management and leadership team understand their obligations and how to identify/respond to sex discrimination sexual harassment and sex-based harassment.
• Rick assesses your workplace to identify potential for sexual harassment.
• Have a sexual harassment policy, or review and update your policy to comply with the new obligations.
• Know how to handle complaints about sexual harassment and encourage the reporting of incidents.
• Develop a prevention plan outlining measures the business will be taking to prevent and respond to sexual harassment.

If you have any questions in relation to the positive duty, please contact our Workplace Relations and Legal team on (02) 6175 5900.