Positive Duty Guidelines: Compliance with the Sex Discrimination Act

What is the positive duty in the Sex Discrimination Act?

Australian organisations must eliminate sexual harassment, sex-based discrimination and victimisation. Rather than simply responding to incidents in the workplace, the positive duty means organisations should take reasonable and proportionate measures to eliminate unlawful conduct, such as:

• discrimination on the ground of sex
• workplace sexual harassment
• sex-based harassment
• conduct creating a workplace environment that is hostile on the ground of sex
• related acts of victimisation.

Who does the positive duty apply to?

Every entity in Australia governed by the Act must adhere to the positive duty. This means:

• sole traders
• small businesses
• large corporations
• universities and other educational institutions
• not-for-profits, clubs and peak bodies
• government entities

The scope of the positive duty is broad. Coverage extends not only to employees but also to workers, agents and third parties with whom employees come into contact in connection with their work. It even considers how third parties treat employees in a work context, for example, customers, delivery drivers, and other service workers.

Positive duty obligations

The positive duty is adaptable to organisations of varying sizes and structures. The Australian Human Rights Commission understands that businesses differ in size and nature. What is financially viable for a large company to implement may be impractical and costly for small businesses.

When determining if an organisation has taken all reasonable and proportionate measures to eliminate  relevant unlawful conduct, the Human Rights Commission considers:

• the number of employees
• nature of the industry
• operational location (physical and online)
• risk factors present in the business or organisation.

Small businesses may be permitted less formal mechanisms, such as using free resources and services and communicating policies and behavioural expectations regularly to employees. 

Large, well-resourced entities may require more sophisticated measures like employee training, anonymous reporting tools for disclosing misconduct and comprehensive policies.

For both small and large entities, the goal is the same: employers must take proactive and meaningful action to prevent workplace sexual harassment, discrimination and victimisation.

What are the seven standards of the positive duty?

To effectively satisfy the positive duty under the Sex Discrimination Act, the Commission has set out seven key standards. Here's a concise breakdown of these standards:

1. Leadership 

Senior leaders must understand their legal obligation under the Sex Discrimination Act, including the specificities of unlawful conduct. Their responsibility is to ensure that proactive and responsive measures are developed, reviewed, and clearly communicated to workers. Furthermore, leaders should exemplify respectful behaviour and be committed to furthering inclusion and gender equality in the workplace.

2. Culture 

Organisations should foster a safe, respectful, and inclusive workplace culture. This environment should inspire confidence in workers, motivating them to report instances of misconduct, knowing that the system will prioritise their well-being and address any issues.

3. Knowledge 

Organisations must establish a comprehensive policy on respectful behaviour and the repercussions of misconduct. This framework should provide workers with clarity on behavioural expectations, mechanisms to detect inappropriate actions, and a thorough understanding of their rights and responsibilities within the workspace. Bystander training may be an appropriate strategy for workplace safety and harassment prevention.

4. Risk management 

Organisations must be proactive in identifying and assessing potential risks associated with misconduct, taking into account both equality and the well-being of their workforce. Collaboration with stakeholders on identifying these risks is essential. Strategies should be developed to respond to and, more importantly, prevent these risks.

5. Support 

Offering robust support systems is non-negotiable. Workers who witness or undergo misconduct should have immediate access to resources and assistance. This support should remain accessible regardless of whether the incident has been formally reported.

6. Reporting and response 

Clear channels for reporting misconduct should be readily available to workers. Regular communication about these pathways is essential. Responses to reports should be swift, consistent, and prioritised to minimise harm to those involved. 

The Australian Human Rights Commission encourages organisations to implement anonymous reporting platforms like Elker to satisfy the positive duty. Anonymous reporting platforms assist in the early detection of workplace issues and offer secure channels for reporting misconduct.

7. Monitoring, evaluation and transparency 

Consistent data collection on workplace misconduct is crucial. Organisations should harness this data to refine their work culture and bolster preventive measures. An open dialogue about the nature, extent, and subsequent actions related to reported behaviours ensures a transparent and accountable workplace environment.

The seven standards are interconnected, meaning actions addressing one might also cater to others. Every organisation and business should adhere to the seven standards, but the application will vary depending on what's reasonable for each entity. While all entities, even those without employees, are expected to comply, only applicable aspects of the standards will concern those without workers. The Commission will evaluate compliance comprehensively, emphasising that organisations should meet all standards to eliminate discrimination, sexual harassment and other forms of unlawful behaviour in the workplace.

What are the consequences of non-compliance?

Employers can be held accountable for any unlawful actions by their employees related to their work duties. This principle, termed "vicarious liability", implies that if one employee behaves unlawfully towards another, the employer might be held legally responsible and face financial penalties. The determination of whether an employer took "all reasonable steps" to prevent such actions lies with the courts, not the Commission. However, adhering to the Commission's standards of the positive duty can assist employers in proving they aren't liable under this Act.

Beginning December 12, 2023, the Commission will have the authority to:

• initiate inquiries if an entity isn't adhering to the positive duty. These suspicions can arise from various sources, including government agencies, affected individuals, worker unions, or media reports
• offer recommendations after investigating an organisation's adherence to the positive duty
• issue official notices dictating what actions organisations should take to achieve compliance
• approach federal courts to ensure organisations follow the compliance notice
• engage in legally binding agreements with organisations specifying actions they must take or avoid.