Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)

Foreword

Australia has made significant progress towards achieving gender equality and creating a more inclusive society. However, sexual harassment and gender inequality continue to be unacceptably prevalent in Australian workplaces. In 2022, the Australian Human Rights Commission’s fifth national survey on sexual harassment in Australian workplaces found one in three workers said they had experienced workplace sexual harassment in the last five years.

Australia must begin actively preventing workplace sexual harassment and sex discrimination, rather than responding only after it happens.

On 28 November 2022, the Anti-Discrimination and Human Rights Legislation (Respect at Work) Bill passed Parliament. A key amendment was the introduction of a positive duty on organisation and businesses to prevent workplace sexual harassment, sex-based harassment, sex discrimination, hostile work environments and victimisation. The positive duty requires organisations and businesses to take reasonable and proportionate measures to eliminate these forms of unlawful conduct, as far as possible.

The Commission has developed these Guidelines to help Australian employers and business owners understand their responsibilities and the changes they may need to make to meet new legal obligations. The Guidelines are centred around seven standards: leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency.

Examples of practical actions that organisations or businesses can take to meet each of the Standards are clearly set out in the Guidelines. 

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. 

Leaders of organisations and businesses play a pivotal role in setting the benchmark for best practice in preventing unlawful conduct and fostering a culture of respect and inclusivity. By prioritising the implementation of the positive duty, these leaders can demonstrate their commitment to creating workplaces that are not only legally compliant but also truly safe, empowering, and conducive to the well-being of all employees.

This is an opportunity for Australian workplaces to become what they should be – safe, inclusive, gender-equal, and free from sexual harassment and sex discrimination. A place in which all Australians – no matter their gender, race, sexual orientation, disability status or age, have the opportunity to thrive.

Emeritus Professor Rosalind Croucher AM FAAL
President Australian Human Rights Commission

Introduction

Safe and respectful workplaces that advance gender equality, diversity and inclusion are good for business, good for the people who work in and visit them and good for the Australian community. When people feel safe and respected at work, and when they enjoy equality of opportunity, they can thrive and be more productive, while organisations and businesses also benefit.

In 2022, the Australian Parliament significantly reformed the way that federal anti-discrimination law protects people at work, or in workplaces, from harmful behaviours and unlawful conduct.

Previously, the law focused on providing a mechanism for people to make complaints when they experienced unlawful conduct under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). The Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Respect@Work Report)2 found that this legal framework was ineffective at preventing sexual harassment because it only required employers to demonstrate actions taken to try to prevent harmful behaviour after the harmful behaviour had already occurred.

Now, the Sex Discrimination Act requires ‘persons conducting a business or undertaking’ and ‘employers’ (organisations and businesses) to take proactive action to prevent discrimination and harm from occurring in the first place. The Sex Discrimination Act also no longer requires a person to make a complaint of unlawful behaviour for the organisation or business to be held to account. These changes to the law require a systemic shift from responding to harm after it happens, to preventing it before it occurs. Preventative approaches are not new to Australian workplaces or the regulation of people at work. These reforms align the approach in the Sex Discrimination Act with other workplace protections, including those set out in work health and safety (WHS) laws.

The new statutory obligation in the Sex Discrimination Act is known as the positive duty³ It requires organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:

• discrimination on the ground of sex in a work context⁴
• sexual harassment in connection with work⁵
• sex-based harassment in connection with work⁶
• conduct creating a workplace environment that is hostile on the ground of sex⁷
• related acts of victimisation⁸

In these Guidelines, the conduct covered by the positive duty is referred to as ‘relevant unlawful conduct’.

Changes to the law also give the Australian Human Rights Commission (Commission) new inquiry and enforcement powers to ensure that organisations and businesses are complying with their positive duty. See section 4.7 for more information.

These Guidelines provide guidance on how to comply with the positive duty and include the Standards that the Commission expects organisations and businesses to meet.

Appendix 1 contains links to available resources to assist organisations and businesses with implementation. This Appendix will be updated as further resources are developed. 

Organisations and businesses can find further information about the unlawful conduct covered by the positive duty, including its drivers, risk factors and impacts, in the Commission’s educative companion document, Information Guide on the Positive Duty under the Sex Discrimination Act 1984 (Cth): Relevant Unlawful Conduct, Drivers, Risk Factors and Impacts (Information Guide).

A note on terminology

This document acknowledges the gendered nature of discrimination, harassment and victimisation. When discussing the law, and the conduct covered by the positive duty, these Guidelines use the term ‘sex’ and refer to concepts such as sex discrimination and sex-based harassment. This is because it is the language used in the Sex Discrimination Act. In broader policy discussions, these Guidelines use the term ‘gender’ and refer to concepts such as gender inequality, gender roles and gendered violence. ‘Gender’ is a more common term than ‘sex’ and it is more relevant when considering socially constructed roles, behaviours and attributes.

When the terms ‘men’ and ‘women’ (or their equivalents) are used in this document, this is intended to be inclusive of all genders, including trans men and trans women (subject to any limitations imposed by the Sex Discrimination Act or relevant case law). Where applicable, the document also refers to specific impacts on Lesbian, Gay, Bisexual, Trans and gender diverse, Intersex and Queer (‘LGBTIQ+’) people.

Context

Global movements such as #MeToo, as well as research conducted through national
surveys and inquiries,¹⁰ have drawn particular attention to the nature and extent of gender inequality and sexual harassment in Australian workplaces.

More than ever before, people are recognising the moral, legal and business imperatives of having a safe, respectful, diverse and inclusive culture at work.

Yet research shows that Australia has a long way to go to make work safe and inclusive for all. Time for respect: Fifth national survey on sexual harassment in Australian workplaces (National Survey 2022)¹¹ found that 33% of people reported having experienced workplace sexual harassment in the previous five years – representing 41% of women and 26% of men.¹² 

Additionally, the risk of sexual harassment is much greater for people who already experience higher rates of disadvantage and discrimination, with 46% of workers who identify as lesbian, gay, bisexual, transgender or intersex; 56% of Aboriginal or Torres Strait Islander workers; and 48% of workers with disability, indicating that they were sexually harassed at work in the previous five years.¹³

Gender inequality, power imbalances, entitlement and exclusion, as well as a lack of accountability provide the underlying conditions for sexual harassment, sex- based harassment and other forms of sex discrimination to thrive. While progress has been made in recent decades, significant work still needs to be done to achieve substantive equality between men and women in Australia.¹⁴ For example, in 2022, men were twice as likely to be in the top income bracket than women, and only 1 in 4 organisations that reported to the Workplace Gender Equality Agency had gender balanced leadership teams (between 40% to 60% women).¹⁵

The Respect@Work Report found that people who experience sexual harassment and other forms of sex discrimination often experience serious mental, economic and physical harm.¹⁶

Many Australian organisations and businesses have recognised that an unsafe and disrespectful workplace culture diminishes their ability to attract and retain the best people; reduces productivity; and creates significant reputational and legal risks. Further, an unsafe and disrespectful workplace impacts the ability of organisations and businesses to attract customers and investors. It also affects their credibility and their bottom line.

In 2018/2019, Deloitte Access Economics estimated that workplace sexual harassment cost the Australian economy $3.5 billion that financial year.¹⁷

The costs of responding to discrimination, harassment and victimisation only once it has already occurred, are too high. Harm suffered by those experiencing the conduct can be serious and long lasting, as can the impacts on the broader workforce and the organisation or business.