Australian businesses must comply with 7 new positive duty standards
Are you familiar with the concept of positive duty? It’s more than just a legal requirement – it’s a fundamental shift in how Australian businesses approach workplace conduct. Enshrined in the Sex Discrimination Act since December 2023, positive duty mandates that all organisations and businesses must actively combat unlawful behaviour within their premises.
But what does this mean for you as an employer or employee?
In this article, we’ll delve into the new positive duty legislation, exploring its implications and the proactive measures businesses must take to foster safer and more inclusive workplaces.
What is positive duty
The positive duty is a new legal requirement in the Australian Sex Discrimination Act. Positive duty states that all organisations and businesses in Australia have a legal duty to take ‘reasonable and proportionate measures’ to eliminate and prevent unlawful conduct in their workplaces.
This legislation became mandatory in December 2023.
Put simply, all Australian employers are now required to actively prevent workplace sexual harassment and sex discrimination. Businesses must implement practical and meaningful processes into their daily operations to prevent and address sexual harassment in their workplace.
An overview of the new positive duty legislation
The positive duty requires all Australian employers to proactively take measures to eliminate sexual harassment and other unlawful behaviour in the workplace. This means more than just reacting to complaints; it means stopping bad behaviour before it starts.
This shift brings added compliance and complexity nationwide. Regardless of complaints, you can be held accountable under the Sex Discrimination Act. It’s no longer enough to wait for problems; businesses must be seen to create safe, respectful workplaces for all.
The law doesn’t need someone to complain for a business to be responsible anymore. This means businesses can’t wait for complaints to act. Instead, you have to work to stop problems before they happen. This change means a big shift from dealing with problems after they’ve already occurred to preventing them in the first place.
What conduct does the positive duty cover?
The positive duty requires you to take reasonable and proportionate measures to eliminate the following in your workplace:
- workplace sexual harassment
- sex-based harassment
- sex discrimination
- hostile work environments
- victimisation
Why was The Positive Duty introduced?
In the past, the law mainly focused on letting people complain if they faced unfair treatment under the Sex Discrimination Act. However, this wasn’t effective in stopping sexual harassment – it only made businesses show they tried to stop bad behaviour after it already happened.
Positive Duty requires businesses to act before harm occurs. You can do this by taking steps to prevent discrimination and harm from the start.
This idea of stopping problems before they start isn’t new. It’s something workplaces already do for safety, like with work health and safety laws. These changes in the Sex Discrimination Act bring it in line with other workplace protections.
What is the aim of the Positive Duty?
The aim of the positive duty is to prevent unlawful conduct, rather than reacting to it after it’s occurred.
This is because preventative action that addresses relevant unlawful conduct at a systemic level is more effective at creating safe, respectful and inclusive workplaces.
The Human Rights Commission believes businesses play a pivotal role in setting the benchmark for best practice in preventing unlawful conduct and fostering a culture of respect and inclusivity.
If you can prioritise the implementation of the positive duty, you show your commitment to creating a workplace that is not only legally compliant but also genuinely safe and supportive, for all employees.
You create a workspace where everyone, regardless of their gender, race, sexual orientation, disability status, or age, has the opportunity to thrive. This will then have a knock-on effect on the rest of society.
Who will monitor whether a business has been practising positive duty?
The Australian Human Rights Commission is responsible for ensuring compliance with the positive duty outlined in the Sex Discrimination Act. The Commission holds the authority to initiate inquiries if it suspects that an organisation or business is not adhering to the positive duty.
It’s worth noting that the Commission can start an inquiry without getting permission from the organisation or business involved. Also, it has the power to ask for information, documents and witness statements as part of its investigation.
What does the positive duty mean for Australian businesses?
The latest government legislation now mandates businesses of all sizes to take a stand against workplace sexual harassment. This applies to every organisation and business in Australia, including:
- sole traders
- self-employed individuals
- small businesses
- medium businesses
- large businesses
- government entities
Under the Sex Discrimination Act, both those conducting a business and employers are obligated to fulfill the positive duty.
What does this mean for your company? Essentially, if a complaint is lodged and triggers an inquiry by the Australian Human Rights Commission, and you fail to demonstrate that you’ve taken reasonable and proportionate actions to address sexual harassment, you and your company could be held liable. Moreover, in severe cases, victims may pursue legal action, holding you accountable.
It’s important to note that organisations can also be held vicariously liable for the actions of their employees. This means that even if the organisation didn’t commit the unlawful behaviour, it could still be responsible for the actions of its employees during their employment unless it can prove it took preventive measures against sexual harassment.
These new laws leave no business exempt, regardless of size or nature. However, the required processes will vary based on your business’s size and available resources.
What are the positive duty requirements of Australian business owners?
As a business owner, you need to address 7 standards:
- Leadership
- Culture
- Knowledge
- Risk Management
- Support
- Reporting & Responding
- Measuring & Monitoring
Your business may already be taking some of these actions, for example as part of your Work Health and Safety obligations.
To find out more about the 7 Standards of Positive Duty, read this article, Positive Duty Standards Explained: What They Mean and How You Can Comply.
What happens if you don’t comply with the positive duty?
If you don’t address the positive duty, you are failing to comply with the Sex Discrimination Act. This could result in significant fines and other financial penalties. Moreover, it could really tarnish your business’s reputation, affecting its value, insurance premiums, and attractiveness to potential employees.
This case study is the perfect example of a worst-case scenario: Supermarket found vicariously liable for failing to adequately investigate employee’s sexual harassment claim.
How can Australian businesses plan ahead to avoid neglecting positive duty?
Given that the positive duty under the Sex Discrimination Act is a new legal obligation, organisations and businesses should prepare to allocate additional resources, both financial and otherwise, for your initial response. This will enable you to establish or modify existing structures and processes to ensure they are effective. Over time, the resources required may decrease as you establish the suitable systems, processes and a culture of compliance.
If you need help implementing the 7 standards of positive duty set by the Human Rights Commission into your business, book a free consultation with us. Our specialist team is here to help you put actions into place now, before an issue arises in your workplace.
