AHRC release guide for employers to complying with their positive duty under the Sex Discrimination Act (Cth)

Authors:

Jacob Redden, Gabrielle Burford

In August 2023, the Australian Human Rights Commission (AHRC) released a guide to assist employers in complying with the positive duty to prevent sexual discrimination and harassment.

Amendments to the Sex Discrimination Act 1984 (Cth) (Act), which took effect in December 2022, established a positive duty for persons conducting a business or undertaking and employers to take reasonable and proportionate measures to eliminate, as far as possible:

• sex based discrimination and harassment in connection with, or in the context of, work
• workplace sexual harassment
• conduct on the ground of sex that amounts to subjecting a person to a hostile work environment
• related acts of victimisation.

Section 47C of the Act provides that, in determining whether a duty holder has complied, regard will be had to the size and nature of the business, available resources and whether measure are practical, including in having regard to the associated costs.

With the AHRC’s power to enforce duty holder compliance commencing in December 2023, the AHRC has published guidelines for employers.

Guidelines

The Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (Guidelines) are available on the AHRC’s website. The guidelines stipulate that it is expected employers will have reasonable and proportionate measure in place to address the following 7 standards:

1. leadership
2. culture
3. knowledge
4. risk management
5. support
6. reporting and response
7. monitoring, evaluation and transparency.

With AHRC enforcement commencing from December 2023, employers should review the guidelines and consider their own measures in respect of the 7 standards and the positive duty more broadly. If an employer is unsure about their duty or the reasonableness of measures in place, they should seek advice.

Please contact Gilchrist Connell’s national Workplace law team for assistance and guidance about the workplace law reforms or any other workplace law matter.

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.

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