Employers’ positive duties to comply with Sex Discrimination Act

Employment Law: 28 November 2023

Author: Stephen Curtain - Our People

Victorian employers already have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible under the Equal Opportunity Act 2010.

However, on 12 December 2023 the Australian Human Rights Commission acquires new powers to investigate and enforce compliance with new positive duties on employers to take proactive and meaningful action to prevent the unlawful behaviours of sex discrimination; sexual harassment at work; conduct creating a workplace that is hostile on the ground of sex; and acts of victimisation in relation to each of these.

On 9 August 2023, the Fair Work Commission released guidance on how to comply with the new positive duty under the Sex Discrimination Act (“SDA”). The guidelines set out the following seven standards the Commission expects employers to comply with to satisfy the positive duty obligations under the SDA:

1. Leadership – Senior leaders should understand the positive duty and know specifically what conduct is unlawful. They are responsible for ensuring appropriate measures are taken, updated, reviewed and communicated to workers. An example of senior leaders and managers being informed and engaged about the positive duty is to include sexual harassment and positive duty compliance as a standing agenda item at board and senior leadership management meetings.
2. Culture – Create a safe, respectful and inclusive culture, and regularly consult and engage with workers to discuss measures to eliminate potential sexual harassment risks and hazards. This can also be used as an opportunity to promote a 'speak up' culture which helps prevent potential legal, reputational and financial risks that could otherwise harm the stability of the organisation.
3. Knowledge – Create and enforce policies addressing respectful behaviour and unlawful conduct. Educate employees at all levels to promote a safe, respectful, and inclusive environment, including by setting behaviour standards, informing them of their rights and responsibilities, and their role in preventing and addressing unlawful conduct.
4. Risk management – Consult with all stakeholders about sexual harassment risks and hazards and take a risk-based approach to prevent and respond to unlawful behaviours. Identify and assess circumstances that may give rise to the likelihood of sexual harassment incidents. This involves taking a work health and safety approach to sexual harassment and conducting regular risk assessments to identify hazards and then implement control measures to address the hazards.
5. Support – Ensure appropriate support mechanisms are in place for workers who experience or witness unlawful conduct.
6. Reporting and response – Ensure appropriate processes for reporting and responding to reports of unlawful conduct exist and these are regularly communicated to workers. Also ensure responses to reports of unlawful conduct are consistent, timely and prevent harm and victimisation.
7. Monitoring, evaluation and transparency – Collect data to understand the nature and extent of workplace unlawful conduct and use it to assess and improve workplace culture and develop prevention strategies. For example, meeting notes of consultation conducted with workers, survey results, feedback and exit interviews.

It is critical therefore that employers ensure that they are familiar with their obligations and have comprehensive policies and procedures in place to cover the positive duty, that staff are trained and familiar with them and that legal advice is obtained promptly in the event of an issue or an apparent breach.

Aitken Partners can assist with the education and training and the drafting and implementation of policies as well as dealing with issues needing attention.

For more information please contact Stephen Curtain - 03 8600 6006.