The Australian Human Rights Commission Guidelines for Complying with Positive Duty

The Australian Human Rights Commission (AHRC) has recently published the Guidelines for complying with the positive duty under the Sex Discrimination Act 1984 (Cth) (the Guidelines).

A quick recap on the positive duty

In December 2022, the Sex Discrimination Act 1984 (Cth) was amended to introduce a new statutory obligation, also known as the positive duty, on employers and persons conducting a business or undertaking (PCBUs) to eliminate, as far as possible:

• discrimination on the ground 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.

On 13 December 2023, the Australian Human Rights Commission will have the power to investigate and enforce compliance with the positive duty.

About the Guidelines

The Guidelines provide practical guidance on how to comply with the positive duties. These Guidelines also set out the 4 Guiding Principles and the 7 Standards that the AHRC expects businesses to meet.

These Guidelines are issued in accordance with section 35A of the Australian Human Rights Commission Act 1986 (Cth). While the Guidelines are not legally binding, they are authoritative and set out the steps that the Commission expects organisations and businesses to take to comply with the positive duty. Following the Guidelines will assist businesses to comply with the positive duty.

The 7 Standards

1. Leadership – The senior leaders and managers are expected to understand their obligations under the Sex Discrimination Act. They will be responsible for implementing, documenting, and communicating effective measures and procedures to comply with the positive duty.

2. Culture – Businesses should encourage a workplace culture that is safe, respectful, and inclusive which values diversity and gender equality.

3. Knowledge – Businesses should develop, communicate and implement a policy regarding respectful behaviour and unlawful conduct. Support should be provided to workers (including leaders and managers) to engage in safe, respectful and inclusive behaviour through education on their rights and responsibilities in creating a safe, respectful and inclusive workplace and working relationship.

4. Risk management – Businesses should recognise that relevant unlawful conduct is an equality risk and a health and safety risk, and take a risk-based approach to prevention and response.

5. Support – Businesses should ensure that appropriate support is available to workers (including leaders and managers) who experience or witness relevant unlawful conduct.

6. Reporting and response – Businesses should 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 should be consistent and timely.

7. Monitoring, evaluation and transparency – Businesses should collect appropriate data to understand the nature and extent of relevant unlawful conduct concerning their workforce. The data collected should be used to regularly assess and improve the work culture. Businesses should be transparent about the nature and extent of reported behaviours that could constitute relevant unlawful conduct concerning their workers and the actions taken to address it.

Members are highly encouraged to read the Guidelines for examples of practical ways to achieve each Standard. Although there is no “one size fits all”, the practical guides in the Guidelines will assist employers to develop a framework that suits their businesses.

Members can find a copy of the Guidelines here: The AHRC Guidelines for Complying with Positive Duty.

If you have any queries in relation to positive duty, please reach out to the Workplace Relations and Legal Team on (02) 6175 5900.