New Positive Duty under the Sex Discrimination Act

As featured in the latest edition of Bowler Magazine

The recent changes to the Sex Discrimination Act 1984 mean that employers now have a positive duty to remove sexual harassment, sex discrimination and victimisation in the workplace. This aims to remove unlawful behaviour including:

  • Treating someone unfairly based on their gender in a work setting
  • Inappropriate sexual advances or behaviour linked to work
  • Harassment related to sex within the work environment
  • Behaviour fostering a work atmosphere which is hostile due to the person’s sex
  • Act of victimisation

This means that employers now need to take active steps to prevent sexual harassment and discrimination in the workplace, rather than responding after an event has occurred. An employer will not be held responsible for the wrongful actions of their employees or representatives if they have taken “all reasonable steps” to prevent such behaviour.

As part of the changes to the Sex Discrimination Act, the Australian Human Rights Commission have been given powers to investigate and enforce compliance with the new positive duty on employers. The Commission will be able to initiate an enquiry if they ‘reasonably suspect’ that the employer has failed to comply with the positive duty.

To assist employers, the Commission has recently released guidelines and practical examples that can be adopted by employers to comply with the positive duty requirements. In particular, there are 7 standards in the guidelines that outline what steps an employer is required to take to comply with the positive duty. These standards are concerned with:

  • Leadership
  • Culture
  • Knowledge
  • Risk management
  • Support
  • Reporting and response
  • Monitoring, evaluation, and transparency

The regulations concerning compliance to the positive duty, including the Commission’s authority to investigate compliance, issue compliance notices, enforce them, and engage in binding commitments, will take effect on 12 December 2023. It is therefore important that all Clubs with employees familiarise themselves with the new guidelines and put in place measures to ensure that they are meeting the positive duty in accordance with the Sex Discrimination Act.

If you have any questions about how these new positive duties apply to your Club, then please feel free to contact me on 07 3224 0353. 

“The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.”
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