Positive duty under the Sex Discrimination Act

In December 2022, a new positive duty on employers and persons conducting a business or undertaking (PCBUs) to eliminate workplace sex discrimination and harassment commenced.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth), introducing a positive duty on employers and PCBUs to eliminate:

• workplace sexual harassment, sex discrimination and sex-based harassment;
• conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and
• certain acts of victimisation.

Prior to this amendment, the law focused on providing a mechanism for people to make complaints when they experienced unlawful conduct under the Sex Discrimination Act. The “Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces” report 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.

The key change to law now requires employers and PCBUs to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs. The new positive duty imposes a legal obligation on employers and PCBUs to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and victimisation from occurring in the workplace or in connection to work.

So what does “actively preventing workplace sex harassment and discrimination” look like in practice for employers? While the expectations for a business to comply will vary, depending on factors such as the:

• size of the business or organisation
• resources and budget available
• nature of the business and its operational priorities
• cost of the measures and whether they can actually be put into place effectively.

there are minimum standards set out with which all organisations and businesses must comply. One of these? Under the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024, PCBUs in Queensland must prepare and implement a prevention plan to manage identified risks of sexual and sex or gender-based harassment. This plan must be in place by 1 March 2025.

This plan must be reviewed if a report of sexual or sex or gender-based harassment is made, if requested by a health and safety representative or otherwise every three years.

Need more information on the positive duty and your compliance obligations as an employer? Call Bare Bones Consulting today. We’ll keep things simple for you.