AHRC publish guidelines on satisfying the positive duty under the Sex Discrimination Act

At a glance

• The Australian Human Rights Commission (AHRC) has published the Guidelines for Complying with the Positive Duty under the Sex Discrimination Act (Guidelines).
• The Guidelines provide practical guidance on the scope of the positive duty under section 47C of the Sex Discrimination Act 1984 (Act).

The Guidelines establish four guiding principles and seven standards that employers and persons conducting a business or undertaking (PCBUs) must apply when implementing proactive measures to eliminate sexual harassment, sex-based harassment, sex discrimination, conduct creating a workplace environment that is hostile on the ground of sex and related acts of victimisation as far as possible.

While the Guidelines are not legally binding, the AHRC has stated that it will use them to assess compliance with the positive duty when its enforcement functions commence from 12 December 2023.

Embedding the standards and guiding principles

Central to the Guidelines are four guiding principles and seven standards that the AHRC expects employers and PCBUs to embed within their legal framework.

In implementing the standards and guiding principles, the AHRC acknowledges that a tailored approach must be adopted. Relevantly, a universal approach across all organisations is not appropriate and careful consideration of what practical actions are necessary to comply with the seven standards and guiding principles must occur.

The seven standards are set out below. 

• Standard one - Leadership: Employers and PCBUs should ensure that senior leaders with management responsibilities understand their obligations under the Act and their responsibilities for developing, communicating, and regularly updating proactive measures to prevent and respond to relevant unlawful conduct, and promote safe, inclusive workplaces that value diversity and gender equality by setting clear expectations and modelling respectful behaviour.
• Standard two - Culture: Employers and PCBUs should foster an environment characterised by safety, respect inclusivity and an appreciation for diversity and gender parity to empower employees to report instances of unlawful behaviour, mitigate harm and hold perpetrators accountable.
• Standard three - Knowledge: Employers and PCBUs should establish and enforce a policy addressing respectful behaviour and unlawful conduct and facilitate education for all workers to promote safe, inclusive, and respectful behaviour. Relevant education areas include understanding expected standards of conduct, identifying behaviours that breach the positive duty and understanding the consequences of such actions and understanding workers’ rights and responsibilities in fostering a safe and respectful work environment and actively preventing and responding to unlawful conduct.
• Standard four - Risk Management: Employers and PCBUs need to understand the risks to equality and health and safety that are posed by unlawful conduct and therefore should adopt a risk-oriented approach for prevention and addressing such conduct.
• Standard five - Support: Employers and PCBUs should ensure accessible support is available to all workers who experience or witness unlawful conduct, irrespective of whether reports are made.
• Standard six - Reporting and response: Employers and PCBUs should establish clear reporting and response channels which are regularly communicated to workers and affected individuals and responses should be consistently promt to reduce harm and victimisation and ensure proportionate consequences.
• Standard seven - Monitoring, evaluation and transparency: Employers and PCBUs should gather data on unlawful conduct within their workplace to assess and enhance workplace culture and develop preventative measures. Transparency about the nature and extent of reported behaviours that could constitute unlawful conduct should be observed.

In implementing the seven standards, employers and PCBUs must have regard to adhering to four guiding principles to ensure they tailor the standards to the individual needs of their business. These are set out below.

• Guiding principle one - consultation: The approach should include consultation with workers in order to ensure that actions taken are guided by those impacted or potentially impacted by unlawful conduct.
• Guiding principle two - gender equality: The approach should advance gender equality so that people of all genders have equal rights, rewards, opportunities and resources.
• Guiding principle three - intersectionality: The approach should acknowledge and address the interrelationship that exists between systemic issues and factors including race, religion, gender, sexual orientation and disability and the risks and impacts of unlawful conduct.
• Guiding principle four - person-centred and trauma-informed approach: The approach should be person-centred and trauma-informed so that workplace systems, policies and practices support people’s individualised needs and prevent causing further trauma.

How can we help?

We will be continuing to publish alerts and updates on the positive duty and steps employers need to be taking.

Noting the significant penalties that apply for contravention of the positive duty, it is imperative that employers and PCBUs understand their wide-ranging obligations under the positive duty and implement individualised measures which proactively prevent conduct in breach of the positive duty.

DLA Piper can assist organisations in implementing measures to comply with the positive duty so please don’t hesitate to reach out to any member of our team.