Understanding the New Positive Duty in the Sex Discrimination Act 1984

The Sex Discrimination Act 1984 (SDA) has long been a cornerstone of workplace equality in Australia. It prohibits discrimination on the basis of sex, ensuring fair treatment for all employees. However, a significant change was implemented in December 2022 with the introduction of a new positive duty. This shift marks a move from a reactive to a proactive approach to combating sex discrimination.

What is Positive Duty in the Sex Discrimination Act?

Definition of Positive Duty

The positive duty mandates organizations and businesses to take reasonable and proportionate measures to prevent, as far as possible:

• Sex discrimination (e.g., unequal pay or promotion opportunities based on gender)
• Sexual harassment (unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature)
• Sex-based harassment (offensive behaviour based on a person's sex or gender identity)
• Hostile workplace environments based on sex (an environment that is intimidating, hostile, or humiliating for a person because of their sex)
• Victimisation related to any of the above (retaliation for making a complaint or supporting someone else's complaint)

Goals of Implementing Positive Duty

This new duty aims to achieve two key goals:

• Prevent Discrimination: By taking proactive steps, employers can create a work environment where discrimination is less likely to occur in the first place. This could involve implementing unconscious bias training or reviewing recruitment and promotion practices for potential gender bias.
• Workplace Equality: By fostering a culture of respect and inclusion, positive duty paves the way for a more equitable workplace for all genders. This can lead to a more diverse and productive workforce.

Changes to the Sex Discrimination Act 1984

Overview of the 2024 Amendments

The December 2022 amendments introduced the positive duty, placing a legal obligation on employers, also known as Persons Conducting Business or Undertakings (PCBUs), to actively prevent sex discrimination. This means employers can no longer simply react to complaints but must take steps to prevent them from happening in the first place.

Key Features of the New Duty

The positive duty emphasizes:

• Compliance Requirements: Employers must develop and implement policies and procedures that address the five types of unlawful conduct mentioned earlier. These policies should be clear, concise, and accessible to all employees.
• Enforcement: The Australian Human Rights Commission (AHRC) has the authority to investigate potential breaches of the positive duty. This means employers should take the positive duty seriously and ensure they are taking appropriate steps to comply.

Impact of Positive Duty on Employers

Responsibilities Under the New Duty

Employers now have a clear responsibility to:

• Develop and implement a comprehensive anti-discrimination policy. This policy should clearly outline the types of discriminatory behaviour that are prohibited, complaint procedures, and support available to employees.
• Provide training and education on sex discrimination and respectful workplace behavior. This can help employees understand their rights and responsibilities and create a more respectful work environment.
• Establish robust complaint mechanisms for reporting discriminatory incidents. This includes ensuring employees feel safe and comfortable reporting any concerns they may have.
• Regularly monitor and review their policies and procedures to ensure effectiveness. The positive duty is an ongoing process, and employers need to ensure their measures are working effectively.

Benefits of Implementing Positive Duty

By proactively preventing sex discrimination, employers can reap several benefits:

• Enhanced Workplace Culture: A culture of respect and inclusion leads to a more positive and productive work environment for everyone.
• Reduced Staff Turnover: Employees who feel valued and respected are more likely to stay with the company, reducing costly turnover.
• Improved Employer Brand: Companies committed to diversity and inclusion become more attractive to top talent, aiding in recruitment efforts.
• Reduced Legal Risk: Proactive measures can help prevent costly legal disputes arising from sex discrimination claims.

Compliance and Enforcement of Positive Duty

Monitoring and Compliance Mechanisms

The AHRC plays a crucial role in monitoring compliance through:

• Compliance checks: The AHRC can conduct audits or inspections of workplaces to ensure employers are complying with their obligations under the positive duty.
• Investigating complaints: If an employee believes their employer has breached the positive duty, they can lodge a complaint with the AHRC.

Penalties for Non-Compliance

Failure to comply with the positive duty can result in legal penalties, including:

• Financial sanctions: The AHRC can issue fines to employers who fail to comply with the positive duty.
• Orders to implement specific compliance measures: The AHRC can order employers to take specific steps to address any breaches of the positive duty.

Conclusion

The introduction of the positive duty is a significant change for Australian employers. However, by taking a proactive approach and seeking professional guidance if needed, businesses can ensure they are compliant and create a more inclusive and respectful workplace for all.

LegalFinda can connect you with experienced Sydney discrimination lawyers depending on your location. They can advise you on your specific obligations under the positive duty and help you develop a compliant strategy.

FAQs about the New Positive Duty in the Sex Discrimination Act 1984

Q: What is the positive duty in the context of the Sex Discrimination Act?

The positive duty is a legal obligation for employers to take proactive steps to prevent sex discrimination, sexual harassment, and related issues in the workplace. This means employers must go beyond simply reacting to complaints and actively create a culture of respect and inclusion.

Q: How does the new positive duty affect Australian employers?

Australian employers are now legally required to implement measures to prevent sex discrimination and its various forms. This includes developing and implementing policies, providing training, and establishing clear complaint mechanisms.

Q: What steps should organizations take to comply with the new positive duty?

Here are some key steps organizations can take:

• Review existing policies: Ensure your anti-discrimination policy is up-to-date and addresses the five types of unlawful conduct outlined in the positive duty.
• Conduct a risk assessment: Identify areas where sex discrimination may be more likely to occur.
• Develop and implement a plan: Based on the risk assessment, create a plan to address potential issues and implement necessary measures for compliance.
• Provide training and education: Train employees on their rights and responsibilities regarding sex discrimination and respectful workplace behavior.
• Establish robust complaint mechanisms: Make it easy and safe for employees to report any concerns they may have.
• Regularly monitor and review: Ensure your policies and practices are effective in preventing discrimination.

Q: What are the consequences of failing to meet the positive duty requirements?

Failure to comply with the positive duty can result in legal penalties, including:

• Financial sanctions from the AHRC.
• Orders to implement specific compliance measures.
• Potential damage to your company's reputation.