Under the Sex Discrimination Act 1984 (Cth) (SD Act), businesses have a positive duty to take reasonable and proportionate measures (i.e., actions) to eliminate, as far as possible sex discrimination, sexual harassment, sex-based harassment, behaviours that create a hostile workplace environment on the ground of sex and related acts of victimisation occurring in a work context or in connection with work (unlawful workplace behaviours).
It is important to remember that just responding to reports of unlawful workplace behaviours may not be enough to satisfy the positive duty – preventative action is required.
The Australian Human Rights Commission (AHRC) is responsible for compliance and enforcement of the positive duty under the SD Act. Refer to What is the Positive Duty under the Sex Discrimination Act 1984? for further information about the enforcement functions of the AHRC. The AHRC has issued guidance on what is expected of businesses and organisations to meet the positive duty obligation in its Guidelines for complying with the Positive Duty under the Sex Discrimination Act (Guidelines).
The AHRC says the Guidelines are a tool to assist organisations and businesses to comply with the positive duty, and not a comprehensive statement of all legal responsibilities. However, whether a business or organisation has followed the Guidelines, is likely to be a relevant matter for the AHRC or a court in assessing whether a business or organisation has satisfied the positive duty under the SD Act.
This resource provides examples of the types of actions which may be reasonable and proportionate for a business or organisation to adopt to satisfy its positive duty, depending on its individual circumstances.
Members will need to consider their WHS obligations, as unlawful workplace behaviours will usually be psychosocial hazards under WHS laws. Psychosocial hazards are aspects of work and situations that may cause a stress response which in turn can lead to psychological or physical harm.
Psychosocial hazards are aspects of work and situations that may cause a stress response which in turn can lead to psychological or physical harm. Psychosocial hazards are different in every workplace and even between teams and depend on the type of work being done, the actions taken, and workers’ skills and attributes. WHS laws require duty holders to implement control measures to eliminate psychosocial risks so far as is reasonably practicable. If that is not reasonably practicable, they must minimise psychosocial risks that may harm workers’ psychological or physical health and safety, so far as is reasonably practicable See, for example, SafeWork NSW – Designing Work to Manage Psychosocial Risks and Safe Work Australia’s Model Code of Practice – Managing Psychosocial Hazards at Work, and Model Code of Practice – Sexual and Gender-based Harassment.
To determine how they can comply with the positive duty and other laws, or for assistance regarding the contents of the SD Act or its potential implications for their organisation, Ai Group Members can contact the Workplace Advice Line on 1300 55 66 77 or workplaceadvice@aigroup.com.au.
Organsiations who would like specific advice or support for their business around compliance with the positive duty and/or their obligations under the Respect@Work legislation, please contact Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au or contact the Workplace Advice Line on the above number. For advice and support on obligations under WHS legislation, please contact AI Group’s WHS Consulting Services on safety.services@aigroup.com.au or via our website here.
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