The Australian Human Rights Commission has new powers to make investigations and enforce compliance with the positive duty to take action to prevent unlawful workplace conduct.
In December 2022, the positive duty was introduced into the federal Sex Discrimination Act 1984 (Cth) when the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) was passed. Positive duty imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work.
This arose from a key recommendation in March 2020 in the Respect@Work Report of the Australian Human Rights Commission (AHRC), led by former Sex Discrimination Commissioner Kate Jenkins.
As of 12 December 2023, the Commission has new powers under the Sex Discrimination Act to investigate and enforce compliance with the positive duty. Under the Act, organisations and businesses now have a positive duty to eliminate discrimination on the grounds 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 grounds of sex
- related acts of victimisation.
Dr Anna Cody, Sex Discrimination Commissioner with the AHRC, says, “The [Sexual Harassment] National Inquiry established the need for a proactive and preventative legal framework to shift away from an individual, complaints-based model which places a heavy burden on those who experience sexual harassment.”
This is an important shift in onus. Rather than workers taking reactive steps in the face of discrimination, harassment or victimisation, the responsibility is now in the hands of business and organisations to create safe, inclusive workplaces. All organisations and businesses in Australia, irrespective of their size or resources, that have obligations under the Sex Discrimination Act must meet the positive duty. This includes sole traders and the self-employed, as well as small, medium and large businesses, and government.
Plenty of time
The year since positive duty came into effect has given Australian businesses plenty of time to become familiar with their new responsibilities, Dr Cody says.
She tells LSJ, “This was to allow organisations time to implement measures to become compliant with the positive duty as well as allow the Commission to prepare itself to become the regulator of the positive duty. Organisations and businesses have had ample time to take steps to comply with the positive duty since December 2022. The Commission’s Guidelines for Complying with the Positive Duty were published in August 2023 and are based on existing research and best practices for eliminating relevant unlawful conduct; they provide practical guidance for complying with the positive duty.”
Importantly, as the gig economy grows in Australia, the positive duty extends beyond employees to encompass any person who carries out work in any capacity for an organisation or business according to the Sex Discrimination Act, as under Work Health and Safety Act 2011 (NSW) s37. This means positive duty applies to:
- a contractor or subcontractor
- an employee of a labour hire company who has been assigned to work in a ‘host’ person’s business or undertaking
- an outworker, such as a home-based worker
- a gig worker
- an apprentice or trainee
- a student undertaking work experience
- a volunteer.
Dr Cody says, “The positive duty will create meaningful cultural change in Australian workplaces. Through this change, all organisations and businesses are obligated to have a more gender-equal, inclusive, safe and respectful culture. It also ensures that the full diversity of women are included through any strategies which an employer adopts. This means that groups who we know are at greater risk such as culturally and marginalised women, First Nations women and LGBQTI+ communities will be consulted about necessary changes in the workplace.”
The introduction of positive duty does not change the illegality of sexual harassment and gender-based discrimination in the workplace, and it was never meant to. It rebalances the weight of responsibility, and challenges workplaces to be better informed and answerable for their practices.
Dr Cody says, “Sexual harassment and sex discrimination are unlawful under both the federal Sex Discrimination Act 1984 (Cth) and state-based anti-discrimination law. it is unlawful for individuals to sexually harass or discriminate on the basis of sex, and employers are vicariously liable when this behaviour is engaged in at work.
“The positive duty introduces a new obligation for employers and PCBUs to take reasonable and proportionate measures to eliminate relevant unlawful conduct, as far as possible. It doesn’t replace the underlying provisions which make sexual harassment and sex discrimination unlawful. Rather, it complements these provisions by creating additional obligations for employers to proactively prevent sexual harassment and other relevant conduct.”