Steps to meet the positive duty in the Sex Discrimination Act

The positive duty is a legal obligation introduced into the Sex Discrimination Act 1984 (Cth) in December 2022. It applies to ‘persons conducting a business or undertaking’ and ‘employers’ (as defined in the Sex Discrimination Act). We refer to these duty holders as‘organisations and businesses’ in this factsheet.

The positive duty requires organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate the following behaviour as far as possible:

• discrimination on the ground 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 ground of sex
• related acts of victimisation.

We refer to these behaviours as ‘relevant unlawful conduct’ or ‘unlawful behaviours’ in our publications about the positive duty.

The term ‘Reasonable and proportionate measures’ means that while all organisations and businesses that have obligations under the Sex Discrimination Act must act, the steps expected of each organisation/business will depend on:

• the size and nature of the organisation/business
  
• the resources available.
  

The Australian Human Rights Commission has published a range of resources, including Guidelines for Complying with the Positive Duty, to assist organisations and businesses to understand their obligations and what steps they need to take to satisfy the positive duty.

The Guidelines set out four Guiding Principles and seven Standards that the Commission expects all relevant organisations and businesses to meet to satisfy the positive duty. They are based on research about what works. They provide an end-to-end framework for prevention and response, which businesses can then tailor to their workforce. The Guidelines also provide examples of practical actions that organisations and businesses can take. Organisations and businesses should consider the Guiding Principles and take action against each of the Standards when implementing the positive duty.

Guiding Principles

What works to eliminate relevant unlawful conduct in one organisation or business will be different from what works in another – there is no ‘one-size-fits-all’ approach. The Guiding Principles help to inform the decisions an organisation or business makes about what it needs to do in its own circumstances.

The Guiding Principles are:

• Be consultative – talk to your workers about what they need for a safe and respectful workplace.
  
• Aim to achieve gender equality – where people have equal rights, rewards, opportunities and resources regardless of gender.
  
• Think about your people and acknowledge intersectionality. Do your workers have different intersecting identities that may compound or affect their experience of discrimination and harassment? For example, is a particular individual a woman and/or gender diverse, young, from a racial minority, or do they have a disability?
  
• Be person-centred and trauma informed – support individual choice, safety, dignity and avoid causing harm.
  

Standards for complying with the positive duty

The seven Standards are a framework to help organisations and businesses determine the practical actions to take to eliminate relevant unlawful conduct and to satisfy the positive duty.

Questions to help consider how to apply Standard 1:

• Do senior leaders understand their obligations under the Sex Discrimination Act?
  
• Do senior leaders have up-to-date knowledge about workplace sexual harassment, sex discrimination, and other relevant unlawful conduct?
• Do senior leaders know about the causes and impacts of relevant unlawful conduct, how to identify and respond to it, and where to go for advice, information, and support?
• Have senior leaders put in place measures to prevent and respond to relevant unlawful conduct?
  
• Are these measures documented in a prevention and response plan?
  
• Do senior leaders check whether these measures are working and update them?
  
• Do senior leaders role model respectful behaviour in the organisation or business?
  
• Have senior leaders made it clear that they are committed to creating a safe, respectful, diverse and inclusive workplace?
• Have senior leaders set clear expectations about what behaviour is acceptable in the organisation or business?

Questions to help consider how to apply Standard 2:

• Is the organisation or business culture safe and respectful?
  
• Is the workforce diverse and inclusive?
  
• Is there attention paid to gender balance when recruiting or promoting people?
  
• Are all workers supported to report relevant unlawful conduct when it occurs?
  
• Are reports of relevant unlawful conduct handled in a way that minimises harm?
  
• Are all people who engage in relevant unlawful conduct held accountable for their actions?
  

Questions to help consider how to apply Standard 3:

• What do staff know about relevant unlawful conduct?
  
• Do they know about their rights and responsibilities in relation to creating a safe, respectful and inclusive workplace and working relationships?
• Is this information included in staff inductions and training?
  
• Does education and training include focus on the safe and respectful workplace that you wish to create?
• Does the organisation or business have a policy about respectful behaviour and relevant unlawful conduct and is it consistently enforced?

Questions to help consider how to apply Standard 4:

• Does the organisation or business understand that relevant unlawful conduct can violate a person’s right to equality, non-discrimination and human dignity and is also a health and safety risk?
• Is the organisation or business taking a risk-based approach to preventing relevant unlawful conduct?
• Has the organisation or business identified the risks present, and taken steps to manage these risks?
• Is the organisation or business checking to see if the approach is effective?

Questions to help consider how to apply Standard 5:

• What supports has the organisation or business made available for workers who have experienced or witnessed relevant unlawful conduct?
• Who can your workers speak to about these experiences inside the organisation or business?
  
• What support services outside the organisation or business can workers access?
  
• Do managers and workers know about these supports?
  
• Can workers access support without talking to leadership or management?
  

Questions to help consider how to apply Standard 6:

• If workers experience or witness relevant unlawful conduct, how can they report it? Are there both formal and informal options for reporting?
• Has the organisation or business advised workers how they can report relevant unlawful conduct?
• How will the organisation or business respond to a report from its workers?
  
• Will the response by the organisation or business be consistent, timely and prioritise workers’ safety and wellbeing?
• Will the consequences for people who engage in relevant unlawful conduct be consistent and appropriate in the circumstances, regardless of the seniority or importance of the person engaging in the conduct?

Questions to help consider how to apply Standard 7:

• Does the organisation or business know what relevant unlawful conduct its workers experience or are at risk of experiencing?
• Is it collecting relevant data?
  
• Is the organisation or business using this data to prevent and respond to risks and incidents of relevant unlawful conduct if/when they occur?
• Is the organisation or business upfront with its workers about the presence or risk of relevant unlawful conduct?
• Has the organisation or business communicated to its workers about what steps it has taken to address incidents and risks of relevant unlawful conduct?
• Is the organisation or business checking to see if what it is doing is working and updating if necessary?