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.

Resources

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.

All 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.

SafeWork 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.


Strategic outcomes

There are four strategic outcomes that will help drive to achieve the vision of securing a safe and respectful workplace for all employees.

  1. 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.

  2. Ensure that workplaces are better equipped to prevent and respond to sexual harassment complaints.

  3. Action that enables workplaces to take effective and systematic actions to prevent and respond to workplace sexual harassment.

  4. 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 normalised

  • 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 to report

  • Male-dominated industries or a significant gender imbalance in a work team

  • Irresponsible use of alcohol or drugs in the workplace

  • Lack of diversity

Who is a high-risk worker?

  • Women

  • Younger workers

  • LGBTQIA+ workers

  • Workers with a disability

  • Aboriginal and Torres Strait Islanders

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 sexual harassment?

  • What are the risks in workplace settings and worker groups?

  • How can workplace sexual harassment be identified and managed as a WHS issue?

  • 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 harassment?

  • Case studies on what compliance and best practice look like and lessons learned.

  • How should workplaces respond to reports and incidents of workplace sexual harassment?

  • How can businesses support injured workers to return and recover at work?

What to do?

  • Targeted education and awareness-raising in workplaces

  • Provide targeted resources to workplaces

  • Provide targeted support to workplaces to implement advice and education

  • Support knowledge-sharing

  • 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, and diversity.

  • 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.

  • Proactive Engagement.

What’s next?

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 to start.