Are your business policies up to date to ensure compliance with the positive duty created in the new discrimination and human rights legislation?

As a result of recent amendments to the Sex Discrimination Act 1984 (Cth) (SDA) employers now have a ‘positive duty’ to take reasonable steps to prevent sexual harassment in the workplace. This means that employers and/or persons conducting a business must now be taking reasonable and proportionate steps to prevent harassment.

The changes to the SDA require businesses to shift their focus from responding to harm to preventing harm before it occurs. All organisations and businesses in Australia, including sole traders and the self-employed, are required to ensure they comply with the new positive duty. What this will look like for your business will differ depending on factors such as the size and nature of your business, the resources available and the cost of implementing the recommended measures.

Employers should be aware that from December 2023 the Australian Human Rights Commission will be empowered to monitor, investigate and enforce compliance with the new positive duty.

Changes have also recently been made to the Fair Work Act 2009 (Cth) to expand previous protections around sexual harassment in the workplace including to expressly prohibit sexual harassment in connection with work. Under the changes an employer can be liable for sexual harassment conducted by an employee or agent in connection with work unless the employer can prove they took all reasonable steps to prevent the sexual harassment.

The changes to the SDA and Fair Work Act are in line with recommendations made in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report released in March 2020. The report made 55 recommendations directed at all levels of government and the private sector for policy and legislative reforms to prevent and address sexual harassment.

Businesses need to act now to set up the necessary measures to ensure their compliance with the positive duty under the SDA and the new obligations in the Fair Work Act.