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Resources on the Positive Duty
Under the Sex Discrimination Act, organisations and businesses now have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:
- discrimination on the ground of sex in a work context
- sexual harassment in connection with work
- sex-based harassment in connection with work
- conduct creating a workplace environment that is hostile on the ground of sex
- related acts of victimisation.
The Commission refers to this conduct as ‘relevant unlawful conduct’.
The new positive duty was introduced in December 2022. 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 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.
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.
The positive duty was a key recommendation of the Commission’s landmark Respect@Work Report, led by former Sex Discrimination Commissioner Kate Jenkins AO, published in March 2020.
The Commission has new powers to investigate and enforce compliance with the positive duty. These powers will commence in December 2023.
The Commission has developed practical guidance materials to help organisations and businesses to understand their responsibilities and the changes they may need to make to meet these new legal obligations.
Guidelines for Complying with the Positive Duty (2023)
The Guidelines are the Commission’s most comprehensive legal resource on the positive duty.
The Guidelines provide detailed information about:
- what the positive duty is
- who must meet the positive duty
- what it means to take ‘reasonable and proportionate measures’
- how the positive duty will be enforced
- related legal obligations
The Guidelines also provide examples of practical actions that organisations and businesses can take to help them satisfy the positive duty.
Information Guide on the Positive Duty:
Relevant unlawful conduct, drivers, risk factors and impacts (2023)
The Information Guide is a companion to Guidelines for Complying with the Positive Duty (2023), designed to educate organisations and businesses about the relevant unlawful conduct covered by the positive duty.
The Information Guide covers:
- types of relevant unlawful conduct
- when and where it may occur
- risks and drivers of relevant unlawful conduct
- who relevant unlawful conduct affects and its impacts.
A Quick Guide for Complying with the Positive Duty (2023)
The Quick Guide is a summary of the Guidelines for Complying with the Positive Duty (2023) and the Information Guide, designed to provide information about the positive duty and to help organisations and businesses to satisfy their legal responsibilities.
The Quick Guide explains:
- what the positive duty is and why it is important
- the relevant unlawful conduct to which it applies
- when and where relevant unlawful conduct may occur
- who could experience relevant unlawful conduct
- how organisations and businesses can satisfy their obligations.
A Resource for Small Business (2023)
The Resource for Small Business is designed to promote understanding in the small business community about the new positive duty. This resource includes a brief outline of the positive duty, who it applies to and who it covers. It outlines the steps small businesses can take to satisfy their obligations and provides practical case studies to help small businesses understand the positive duty and take action.
Factsheets
The Commission has prepared a series of factsheets relevant to the positive duty. These are designed to assist organisations and businesses to understand and take action to satisfy the positive duty. Additional factsheets will be forthcoming.
Other materials
The Commission is continuing to develop educational materials and practical tools to assist organisations and businesses to understand their obligations and implement the positive duty.
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