Sex discrimination: new obligations for businesses
12 December 2023
Guidelines are now available to help organisations and businesses fulfil your obligations to take reasonable and proportionate measures to eliminates sex discrimination.
Contact AMCA on 1300 475 615 or [email protected] with any questions relating to sex discrimination or any other work health and safety issue.
From 12 December 2023 onwards, employers will now have an enforceable obligation to proactively prevent workplace sexual harassment and sex-based discrimination.
The Sex Discrimination Act now requires ‘persons conducting a business or undertaking’ and ‘employers’ (organisations and businesses) to take proactive action to prevent discrimination and harm from occurring.
This new statutory obligation in the Sex Discrimination Act is known as the positive duty.
Changes to the law give the Australian Human Rights Commission (AHRC) new inquiry and enforcement powers to ensure that organisations and businesses are complying with their positive duty from today (12 December). It requires organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:
- 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; and
- related acts of victimisation.
What this means in practice is that employers are now required to undertake proactive and preventative action against the abovementioned conduct.
We encourage employers to read all the available information which the AHRC is providing in order to properly comply with and understand the new obligations.
AHRC has published its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)’.
They also provide a range of additional guidance materials.
Employers may also contact the Respect@Work Information Service run by AHRC at 1300 656 419 or [email protected].
Previously, AMCA Australia's workplace relations adviser Workforce Advisory had addressed the changes in expectations and new active or positive
obligations on employers with regard to sex discrimination in the article Federal
government releases sex discrimination guidelines.
Australian employers, regardless of their size, need to understand the
recently released government publication Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984. The government has introduced the concept of a ‘positive
duty’, which requires organisations and businesses to take reasonable and
proportionate measures to eliminate.
In determining whether an organisation
or business has met its positive duty, government agencies will consider a
range of factors, including:
- the size, nature and circumstances of the
business or undertaking;
- the resources of the organisation or business,
whether financial or otherwise;
- the practicality and the cost of measures
to eliminate the relevant unlawful conduct;
- any other relevant matters.
Employers would no doubt be aware that they can be held vicariously liable
for the actions of their employees.
The Guidelines include many practical
examples to assist businesses in meeting their obligations.
We anticipate this new obligation and
associated compliance will be included in future government contract
obligations or enforcement activities by State regulators in 2024.
NSW is the first jurisdiction to release a strategy to prevent sexual
harassment at work.
Each state is to roll out their guidelines. An article
by SafeWork NSW, SafeWork NSW releases strategy to help preventsexual harassment at work, sets out the NSW’s guidelines as
one of the first Australian WHS regulators to establish a team dedicated to
focusing on addressing the gender-based harmful workplace behaviours.
NOTE: Sexual harassment is a form of unlawful sexual discrimination, and
some types of sexual harassment, such as sexual assault, may also be a
criminal offence. See the SafeWork NSW Regulation.
There are four strategic outcomes that will help drive
to achieve the vision of securing a safe and respectful workplace for all
Educate employers and employees. This is done by raising awareness that businesses have a proactive duty to
prevent and respond to workplace sexual harassment as it is a workplace
health and safety issue.
workplaces are better equipped to prevent and respond to sexual harassment
Action that enables workplaces to take
effective and systematic actions to prevent and respond to workplace sexual
Effective regulations. This strategy will
allow for a more effective regulator that includes strengthening and
enforcing WHS laws to protect workers from sexual harassment.
What are the risk factors for employers?
Poor workplace cultures where inappropriate behaviours are tolerated or
Highly hierarchical workplaces
Limited understanding of sexual harassment in the workplace
A high level of contact with customers, clients or the public
Isolated or remote work sites
Lack of trust in workplace policies and processes leading to a failure
Male-dominated industries or a significant gender imbalance in a work
Irresponsible use of alcohol or drugs in the workplace
Lack of diversity
Who is a high-risk worker?
What does workplace sexual harassment training include?
What are the drivers, causes and impacts of sexual harassment?
What are the rights and responsibilities of workers and how to report
What are the risks in workplace settings and worker groups?
How can workplace sexual harassment be identified and managed as a WHS
What are the roles and responsibilities of businesses, workers,
bystanders, health and safety representatives and other duty holders?
How to respond to emerging harms such as online workplace-related sexual
Case studies on what compliance and best practice look like and lessons
How should workplaces respond to reports and incidents of workplace
How can businesses support injured workers to return and recover at
Targeted education and awareness-raising in workplaces
Provide targeted resources to workplaces
Provide targeted support to workplaces to implement advice and education
Support workplaces to measure actions taken
What does a safe and respectful workplace look like?
Exceptional Leadership - Leaders who embody respectful behaviours and
actively champion a culture that embraces gender equality, inclusion,
Comprehensive Risk Management - Implementing the recommended four-step
risk management process is crucial. This involves the identification,
assessment, and control of any potential risks related to workplace
sexual harassment, followed by periodic reviews to ensure effectiveness.
Effective Work Design and Systems - Addressing workplace hazards and
risks can be more effectively and efficiently achieved through improved
design of the work, workplace, and systems of work.
Supportive Return and Recovery -Offering a safe and supportive
return-to-work process after injuries occur, aiding in recovery and
reintegration into the workforce.
Trust and Accountability.
Sexual harassment is a WHS hazard because it can lead to psychological
(mental) or physical harm – also known as a psychosocial hazard. It
will take time to implement a sex discrimination system. Now is the time