A reminder that Australian Human Rights (AHR) Commission has new powers to investigate and enforce compliance with the ‘positive duty’ requirements. These powers will commence on 12 December 2023.
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 persons conducting a business (PCBUs) to eliminate as far as possible, the following unlawful behaviour from occurring::
- 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.
The new positive duty was introduced in December 2022 with a year transition period. It imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work. Taking this preventative action will help to create safe, respectful and inclusive workplaces. This important change requires organisations and businesses to shift their focus to actively preventing workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.
Responding to complaints when they are provided is no longer enough, organisations must provide evidence that they are actively taking preventative measures and managing risks to ensure workplace safety.
Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must meet the positive duty. This includes sole traders and the self-employed, small, medium and large businesses, and government.
As noted in the AHR Commission Fact Sheet on Positive Duty (September 2023):
‘People do not necessarily need to be colleagues or to work together for behaviour to be covered by the positive duty. For example, it is unlawful for third parties such as clients, customers or patients to sexually harass someone while they are at work. It is also unlawful for a worker to sexually harass a client, customer or patient in connection with their work.’ Therefore, in aged care, our workers are potentially at risk to not only colleagues but consumers and their families, friends and representatives.
The following link has many resources (including Guidelines with seven standards) and fact sheets from the AHR Commission to assist:
Mobile: 0414588795 or Office: 02 90520292