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What is Positive Duty in the Sex Discrimination Act 1984?

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The Sex Discrimination Act 1984 is a key piece of legislation that promotes gender equality and aims to eliminate discrimination and harassment on the basis of sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, and breastfeeding in public life.

In November 2022, significant reforms were made to the Sex Discrimination Act to strengthen protections against sexual harassment in Australian workplaces. One of the key changes was the introduction of a new legal obligation known as the “positive duty”.  This has been further strengthened with the release on the 12th December 2023, of the “Guidelines for Complying  with the Positive Duty under the  Sex Discrimination Act 1984 (Cth)”.

Importantly, in this amendment to the Act: “From 12 December 2023, the Commission  will have the power to enforce compliance with the positive duty. These Guidelines  will be used by the Commission to  assess compliance.”  Reference.

What is the Positive Duty?

The positive duty requires organisations and businesses covered by the Sex Discrimination Act to take “reasonable and proportionate measures” to eliminate, as far as possible:

  • Sex discrimination
  • Sexual harassment
  • Sex-based harassment
  • Hostile workplace environments based on sex
  • Related victimisation

This represents a shift from simply responding reactively to incidents of discrimination and harassment once they have already occurred, to proactively taking action to prevent these harmful behaviours from happening in the first place.

The positive duty aims to foster systemic, cultural change by making organisations responsible for creating safe, respectful, and inclusive workplaces. Compliance is overseen by the Australian Human Rights Commission (AHRC), which as mentioned above, now has inquiry and enforcement powers.

Who Must Comply With the Duty?

The positive duty applies broadly to “persons conducting a business or undertaking” (PCBU’s) and “employers” covered by the Sex Discrimination Act. This includes:

  • Companies, partnerships, franchises
  • Government agencies
  • Sole traders
  • Not-for-profits
  • Other entities that employ staff

Regardless of size or resources, all applicable organisations have an obligation to take reasonable and proportionate action to meet the positive duty. What is considered “reasonable and proportionate” will depend on factors like the size of the business, available resources, workplace characteristics, and more.

What is Required to Comply?

To assist organisations in meeting their positive duty obligations, the AHRC has released the Guidelines for Complying With the Positive Duty Under the Sex Discrimination Act (Cth).

These guidelines set out seven key standards that organisations should meet:

  1. Leadership – Senior leaders actively oversee compliance and foster a culture of respect and inclusion.
  2. Culture – A safe, respectful, and inclusive workplace culture is promoted.
  3. Knowledge – Workers are educated on expected standards of behaviour and relevant unlawful conduct.
  4. Risk management – A risk-based approach is taken to prevention and response.
  5. Support – Appropriate supports are available for impacted staff.
  6. Reporting and response – Staff can safely report issues and a timely, appropriate response is provided.
  7. Monitoring, evaluation, and transparency – Data is collected to understand issues in the workplace and drive improvement.

The guidelines provide practical guidance on actions organisations can take to demonstrate compliance under each standard, with flexibility to tailor approaches based on the specific circumstances and characteristics of the business.

Enforcement and Consequences

The positive duty is enforceable by the AHRC. From 12 December 2023, the Commission can conduct inquiries, issue notices directing compliance, and commence court proceedings for breaches.

Potential consequences for non-compliance include:

  • Reputational damage
  • Impacts on the ability to attract and retain staff
  • Increased risk of complaints and litigation
  • Financial penalties

By taking proactive steps to meet their positive duty obligations, organisations can create workplaces where staff feel safe, respected, and included. This is not only beneficial for worker well-being but also supports productivity and business performance.

The Role of Organisational Leadership

Under the positive duty, senior leaders in organisations have an important role to play in fostering systemic change.

Leaders set the tone for workplace culture and acceptable standards of behaviour. They are accountable for enabling compliance through appropriate resourcing, governance, modelling respectful conduct, encouraging reporting, and responding effectively to issues.

Boards and governing bodies also have an oversight role in ensuring the positive duty is met and related risks are appropriately managed.

Through visible commitment and action from organisational leadership at all levels, the positive duty can drive meaningful progress towards safe, respectful, and inclusive Australian workplaces.

How Diversity Australia Can Help

As Australia’s leading professional services firm specialising in Diversity, Equity, and Inclusion, Diversity Australia partners with organisations to create fair, safe, and inclusive workplaces.

Our services include:

  • Consulting – We work with clients to develop strategies and frameworks tailored to their specific needs in meeting the positive duty and other equality legislation.
  • Training – We deliver engaging education programs to equip staff and leaders with the skills and knowledge to create positive, respectful workplace cultures.
  • Assessments – Our diagnostic tools identify strengths, gaps, and opportunities to improve policies, processes, and practices.
  • Compliance – We offer independent reviews to assess compliance obligations and provide recommendations and implementation support.

With extensive experience assisting organisations to advance workplace equality and respect, Diversity Australia stands ready to support organisations to understand and meet their positive duty obligations. By leveraging our expertise and guidance materials, leaders can drive best practices and progress on this vital agenda.

Specifically, we offer online courses on:

To find out more about how we can assist your organisation in meeting its positive duty requirements, contact us today.

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