It’s all positive: AHRC’s guidance to employers on their positive duty under the Sex Discrimination Act 1984 (Cth)

The Australian Human Rights Commission (AHRC) has published guidelines on a set of seven standards for relevant businesses to comply with their positive duty under the Sex Discrimination Act 1984 (Cth) (SDA).

These standards are particularly crucial for employers because from 12 December 2023, the AHRC will have the power to enforce compliance with the positive duty.

Although the new positive duty is relevant to existing concepts such as an employer’s vicarious liability for unlawful actions by employees and agents, this article focuses only on the positive duty and the AHRC’s new enforcement powers.

The positive duty

Under this duty, employers and persons conducting a business or undertaking must take ‘reasonable and proportionate measures’ to eliminate, as far as possible, any unlawful conduct which includes discrimination on the ground of sex, sexual harassment, sex-based harassment, any conduct creating a hostile workplace environment based on the ground of sex and any related acts of victimisation.

How do you meet the positive duty?

1. Leadership

Senior leaders and managers are expected to ‘set the tone’. They will be responsible for ensuring the implementation, documentation and communication of effective measures and procedures to comply with the positive duty.

Leaders should also influence the workplace culture by setting clear expectations of, and modelling, respectful behaviour. Leaders need to participate in quality training sessions or have access to resources to understand their legal obligations.

2. Culture

A culture of safety and respect that values and advances gender equality, diversity and inclusion will be expected by the AHRC. The culture can be communicated formally via policies, procedures and codes of conduct and informally in the day-to-day interactions of workers and actions of leaders.

3. Knowledge

Ongoing, accessible and effective documentation and education should be provided to workers to set clear standards of behaviour. Appropriate training should be provided to enable workers to identify and respond appropriately to any unlawful conduct in the workplace. Standards of behaviour and the consequences of engaging in relevant unlawful conduct should be reflected in appropriate policies and highlighted during ongoing training sessions.

4. Risk management

The AHRC recommends that businesses take a risk-based approach to proactively assessing and managing any relevant unlawful conduct that may arise in the workplace. This includes identifying and assessing risk, implementing control measures and reviewing the effectiveness and appropriateness of the control measures.

5. Support

The AHRC expects businesses to set up an effective framework that takes on a person-centred and trauma-informed approach to support workers before, during and after an incident of relevant unlawful conduct occurring in the workplace. Those supports can be both formal and informal.

6. Reporting and response

The AHRC expects businesses to ensure that workers are aware of reporting options and to respond to any instances of unlawful workplace conduct in a timely and fair manner, that is transparent, person-centred and trauma-informed.

Businesses should therefore ensure that their reporting and response procedures are in line with current legislation and easily accessible and understandable for workers.

7. Monitoring, evaluation and transparency

The AHRC recommends that businesses collect and evaluate quantitative and qualitative data about when, where, why and how relevant unlawful conduct is happening in their organisation, and whom it impacts. That information should be regularly assessed and used to improve the workplace culture. Confidentiality, anonymity, and protection of workers’ privacy will also be relevant considerations.

Enforcement

The AHRC will have the power to conduct inquiries into compliance with the positive duty – including by compelling the production of information and documents, and to make recommendations to achieve compliance.

Where there is non-compliance, the AHRC will be able to issue compliance notices setting out the action that businesses must take, or stop taking, and will be able to apply to federal courts for orders requiring compliance with compliance notices. It will also have the power to enter into enforceable undertakings with businesses setting out what the business agrees to do, or not do, this being an enforcement power also exercised by the Fair Work Ombudsman.

Recommended steps

The AHRC expects all relevant businesses to have ‘reasonable and proportionate’ measures in place to address each of the standards summarised above. This means measures can be tailored to the individual circumstances of the business depending on a range of different factors, including the size, nature and circumstances of the business, the practicality and cost of the measures and the resources of the business.

Examples of measures that a business might consider are:

• governance documentation that reflects a commitment to preventing unlawful conduct;
• clearly and regularly communicating behaviour expectations;
• reviewing your workplace conduct policies and procedures;
• a commitment to ongoing education about unlawful conduct;
• role modelling respectful behaviour;
• celebrating positive behaviours;
• consulting with workers in relation to possible risks;
• easily accessible information about the available supports for workers;
• multiple reporting options, both internally and externally; and
• sharing relevant data with leaders in the business.

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Authored by:

Erin Lynch, Partner
Diana Diaz, Special Counsel
Teresa Zhang, Lawyer