The Australian Human Rights Commission (AHRC) has published guidelines on a set of seven standards for relevant businesses to comply with their positive duty under the Sex Discrimination Act 1984 (Cth) (SDA).

These standards are particularly crucial for employers because from 12 December 2023, the AHRC will have the power to enforce compliance with the positive duty.

Although the new positive duty is relevant to existing concepts such as an employer’s vicarious liability for unlawful actions by employees and agents, this article focuses only on the positive duty and the AHRC’s new enforcement powers.

The positive duty

Under this duty, employers and persons conducting a business or undertaking must take ‘reasonable and proportionate measures’ to eliminate, as far as possible, any unlawful conduct which includes discrimination on the ground of sex, sexual harassment, sex-based harassment, any conduct creating a hostile workplace environment based on the ground of sex and any related acts of victimisation.

How do you meet the positive duty?

Enforcement

The AHRC will have the power to conduct inquiries into compliance with the positive duty – including by compelling the production of information and documents, and to make recommendations to achieve compliance.

Where there is non-compliance, the AHRC will be able to issue compliance notices setting out the action that businesses must take, or stop taking, and will be able to apply to federal courts for orders requiring compliance with compliance notices. It will also have the power to enter into enforceable undertakings with businesses setting out what the business agrees to do, or not do, this being an enforcement power also exercised by the Fair Work Ombudsman.

Recommended steps

The AHRC expects all relevant businesses to have ‘reasonable and proportionate’ measures in place to address each of the standards summarised above. This means measures can be tailored to the individual circumstances of the business depending on a range of different factors, including the size, nature and circumstances of the business, the practicality and cost of the measures and the resources of the business.

Examples of measures that a business might consider are:

• governance documentation that reflects a commitment to preventing unlawful conduct;
• clearly and regularly communicating behaviour expectations;
• reviewing your workplace conduct policies and procedures;
• a commitment to ongoing education about unlawful conduct;
• role modelling respectful behaviour;
• celebrating positive behaviours;
• consulting with workers in relation to possible risks;
• easily accessible information about the available supports for workers;
• multiple reporting options, both internally and externally; and
• sharing relevant data with leaders in the business.