The AHRC can now investigate and enforce compliance with the positive duty under the Sex Discrimination Act 1984 (Cth) requiring employers and PCBUs to eliminate unlawful conduct at work.

In brief

From Tuesday, 12 December 2023, the Australian Human Rights Commission (AHRC) will have new powers to commence an inquiry and ensure compliance when it ‘reasonably suspects’ an organisation is not complying with its positive duty under the Sex Discrimination Act 1984 (Cth) (“Sex Discrimination Act“).

The positive duty commenced in December 2022 following the passing of legislation to implement a recommendation in the Respect@Work Report.

In summary, it requires all employer organisations and persons conducting a business or undertaking (PCBUs) to take ‘reasonable and proportionate measures’ to eliminate, as far as possible, the following ‘relevant unlawful conduct’:

1. Conduct creating a workplace environment that is hostile on the grounds of sex
2. Discrimination on the ground of sex in a work context
3. Sex-based harassment in connection with work
4. Sexual harassment in connection with work 
5. Related acts of victimisation.

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A year on from the implementation of the positive duty, the AHRC now has a range of investigative, compliance and enforcement powers to ensure businesses are meeting their obligations under the Sex Discrimination Act.

As a result, it is more important than ever for employers and PCBUs to understand how to comply with their obligations in relation to the positive duty, and how the AHRC’s new powers may be used to enforce compliance should suspicion arise that they are failing to do so.

Key takeaways

The positive duty imposes a legal obligation on employers and PCBUs to take proactive steps that are reasonable and proportionate to prevent the relevant unlawful conduct from occurring at or in connection to work.

This shift to preventative, rather than responsive, action was a recommendation of the AHRC’s Respect@Work Report, published in March 2020. The Report found that reliance on a complaints process alone was ineffective at preventing sexual harassment and discrimination in the workplace, as it only required an organisation to take action after the harmful behaviour had occurred.

As of 12 December 2023, the AHRC will be empowered to:

• Conduct inquiries into compliance and provide recommendations to achieve compliance
• Issue compliance notices specifying actions to take or refrain from taking, to address non-compliance
• Compel the production of information and documents
• Enter into enforceable undertakings in which organisations agree to do, or refrain from doing, certain things
• Examine witnesses
• Apply to the federal courts for orders to direct compliance with compliance notices, where it ‘reasonably suspects’ an organisation is not complying with its positive duty under the Sex Discrimination Act. The consent of the relevant organisation or business is not required for the AHRC to commence an investigation.

The AHRC may suspect non-compliance for a myriad of reasons, including due to the receipt of information or advice from other government agencies, regulators, affected individuals, unions, workers, or media reports.

If an investigation is commenced by the AHRC and non-compliance is identified, the AHRC may first offer to work with the relevant business or organisation to support them to meet their legal obligations, before other powers are utilised.

What does this change mean for your organisation?

It is critical that organisations understand their obligations to ensure they comply with the positive duty now enshrined in the Sex Discrimination Act.

With the introduction of the AHRC’s new ability to investigate and utilise a range of investigative and enforcement powers, knowing your obligations and implementing recommended strategies to meet them is critical.

We recommend as a starting point considering the AHRC’s material and guidance (discussed below). Our team would be very happy to assist you to navigate your specific obligations and to provide further information relevant to you.

Guidelines for Complying with the Positive Duty

The AHRC released Guidelines for Complying with the Positive Duty in August 2023, which provide information about what the positive duty entails, who must meet it, what ‘reasonable and proportionate measures’ means in practice, how the duty will be enforced and additional, related legal obligations.

The Guidelines include Guiding Principles and seven Standards, which together provide essential guidance on what the AHRC expects businesses to do to comply with their positive duty. 

The Standards are:

1. Leadership (Senior leaders must understand their obligations under the Sex Discrimination Act and ensure appropriate measures are in place to prevent and respond to relevant unlawful conduct. They must also ensure these are communicated to workers and regularly reviewed for efficacy)
2. Culture (organisations and businesses must foster a safe, respectful and inclusive workplace culture)
3. Knowledge (organisations and businesses must ensure a policy in relation to respectful behaviour and unlawful conduct is developed, communicated to workers, and implemented in practice)
4. Risk management (organisations and businesses need to recognise the equality and health and safety risks that relevant unlawful conduct poses in the workplace)
5. Support (appropriate support needs to be made available to workers of all levels who experience or witness relevant unlawful conduct)
6. Reporting and response (appropriate options to report and respond to incidences of relevant unlawful conduct must exist, and responses to reports should be consistent, timely and minimise harm to people involved)
7. Monitoring, evaluation and transparency (collection of appropriate data to enable businesses and organisations to understand the occurrence of, and take action in relation to, relevant unlawful conduct in their workforce).

Reasonable and proportionate measures

The AHRC acknowledges that the method by which each organisation meets the Standards is likely to differ depending on what is ‘reasonable and proportionate’ in the circumstances and compliance will therefore be assessed holistically by the AHRC as it begins to use its new powers of investigation and enforcement.

Note, when deciding whether an organisation has taken ‘reasonable and proportionate measures’ to eliminate relevant unlawful conduct the AHRC and the courts are required to consider:

1. The size, nature and circumstances of the business or undertaking
2. The resources of the organisation or business (financial or otherwise)
3. The practicability and the cost of measures to eliminate the relevant unlawful conduct
4. Any other relevant matters (such as workplace culture, worker supervision, working hours, work design and systems of work, geographic location, the benefits of implementing the measures and any risks associated with a failure to do so).