Positive duty to prevent sexual harassment

13 December 2023

The Sex Discrimination Act 1984 (Cth) was amended to place a positive duty on employers and other persons conducting a business or undertaking (such as sole traders and those self-employed) to eliminate sex-based discrimination and harassment in the workplace.

 

More specifically, this duty requires the focus shift to preventing and eliminating sex-based harassment and discrimination rather than responding after the fact. The duty applies to the prevention and elimination of:

  • Workplace sexual harassment;
  • Sex discrimination;
  • Sex-based harassment;
  • Conduct that amounts to subjecting a person to a hostile work environment because of their sex; and
  • Certain types of victimisation.

 

On 12 December 2023, the powers conferred on the Australian Human Rights Commission (AHRC) by this Act come into force.

 

What are the powers of the Australian Human Rights Commission?

 

The AHRC has a broad scope of powers to promote action to address, educate about and report on sex discrimination in Australian workplaces. They may publish reports and prepare and publish guidelines on the prevention of sex discrimination. The AHRC may receive complaints regarding sex discrimination, investigate the complaint and attempt to resolve the issue through conciliation.

 

In relation to the positive duty, the AHRC has the power to investigate, issue compliant notices and accept undertakings regarding compliance with the positive duty. This means that where an allegation of non-compliance with the positive duty requirement is made, the AHRC may investigate the matter and where they find that there is a breach of the duty, issue a compliance notice giving a time period in which to rectify the breach. If a compliance notice is not complied with then the AHRC President may make an application to the Federal Court seeking orders directing compliance or other orders deemed fit by the Court.

 

What actions should be taken?

 

Taking a pro-active approach to meet this positive duty may include actions such as providing training as part of inductions, considering the workplace and what is displayed, said, and played such as music in a shop. The Respect@Work website has several documents and guides available and will be releasing more in the future to assist employers and those affected by these changes to ensure they are fulling informed on what they need to do to meet the positive duty.   

 

Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on (08) 6241 6129 or email ecalegalwa@ecawa.org.au