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WHAT is the Positive Duty?

Need to understand it? Want a quick and clear explanation?

The Positive Duty: a quick overview

In Australia, the Sex Discrimination Act 1984 (Cth) now includes a Positive Duty that requires employers to take ‘reasonable and proportionate’ measures to eliminate 5 types of behaviour:

  • sex discrimination in a work context
  • sexual harassment in a work context
  • sex-based harassment in a work context
  • conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex
  • victimisation.

The aim is to achieve workplace gender equality by ensuring workplaces are safe, respectful and inclusive.

Is your business or organisation required to satisfy the Positive Duty?

Whether your business is large or small, you have to satisfy the Positive Duty.

The Positive Duty covers:

  • sole traders
  • self-employed people
  • small businesses and organisations
  • medium businesses and organisations
  • large businesses and organisations
  • government.

Whose conduct does the Positive Duty cover?

The Positive Duty is broad and covers conduct by:

  • employers
  • employees and workers
  • agents

In some cases, this means that you need to protect your employees from your customers or clients.

What locations does the Positive Duty cover?

As an employer, you need to be aware that the Positive Duty applies to a wide range of contexts:

  • your physical workplace
  • work-related events
  • when your employees are working online from home
  • when your employees are working at a client or customer’s officer or home.

You now have a legal duty to keep your people safe in any of these contexts.

What happens if you fail to comply?

If the Australian Human Rights Commission (the Commission) ‘reasonably suspects’ that you are not complying with the Positive Duty, it could start an investigation.

Its decision to investigate could be based on:

  • environmental scanning, research or academic literature
  • information or advice provided by other government agencies or regulators
  • information from impacted individuals via the AHRC’s Positive Duty Form or Respect@Work Information Service
  • formal complaints
  • engagement with stakeholders
  • reports in the media or social media.

There are 5 stages involved in enforcing compliance with the Positive Duty:

Stage 1:

You work with the AHRC to achieve voluntary compliance 

The AHRC works collaboratively with you to try to achieve compliance.

Stage 2:

The AHRC commences an inquiry into your business or organisation because it suspects you are not complying

If you are being investigated, you will receive a written notice letting you know on what ground the AHRC has commenced an inquiry.

You will be given the choice of making either an oral or written submission.

The AHRC now has the power to force you to produce information and documents, as well as examine witnesses.

Stage 3:

AHRC notifies its findings and recommendations

If, as a result of the inquiry, the AHRC finds that you have not complied with the Positive Duty, you will be noticed in writing and will be provided with reasons for the decision.

The AHRC may provide recommendation if it believes your firm isn’t complying with the Positive Duty.

Stage 4:

AHRC issues a compliance notice OR enters into an enforceable undertaking

Issuing a compliance notice

If the AHRC finds that you aren’t complying with the Positive Duty, it may issue you with a compliance notice.

The compliance notice will explain the action you need to take to become compliant and a time frame for becoming compliant.

Entering into an enforceable undertaking 

The AHRC could also enter into an enforceable undertaking with you.

This legally binding written agreement between your company or organisation and the AHRC will set out what you need to do, or refrain from doing, to comply with the Positive Duty.

Becoming public

At this point, the issue could become public because the AHRC can publish compliance notices and enforceable undertakings on its website.

Stage 5:

AHRC takes you to court because you have not complied

If the AHRC considers that you haven’t complied with a compliance notice or enforceable undertaking, it can apply to the Federal Courts to seek orders to force your business or organisation to comply.

What do you need to do to comply with the Positive Duty?

In order to satisfy the Positive Duty, you need to implement the AHRC’s Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth).

Step 1: You need to implement 7 Standards

This involves working on:

  1. Leadership
  2. Culture
  3. Knowledge
  4. Risk Management
  5. Support
  6. Reporting and Response
  7. Monitoring, Evaluation and Transparency.

Step 2: Overlay the & Standards with the 4 Guiding Principles 

As you implement the 7 Standards, you need to focus on:

  1. Consultation
  2. Gender equality
  3. Intersectionality
  4. A person-centred and trauma-informed approach.

Step 3: Apply Intersectionality

You need to consider that some groups are more adversely affected that others. Groups may be classified by:

  1. Sex/gender
  2. Sexual orientation
  3. First nations status
  4. Disability
  5. Class
  6. Migration status
  7. Race/ethnicity.

What is the difference between the Positive Duty and Respect@Work?

The terms ‘Positive Duty’ and ‘Respect@Work’ are often used interchangeably.

Technically, the two terms refer to different things.

The term Positive Duty is narrower and refers to the broad changes that the Australian Government has made to the Sex Discrimination Act 1984 (Cth) that require employers to prevent:

  1. Sex discrimination in a work context
  2. Sexual harassment in a work context
  3. Sex-based harassment in a work context
  4. Conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex
  5. Victimisation.

‘Respect@Work’ is a broader concept and may refer to the:

  1. The Respect@Work Report.
  2. The Respect@Work laws, which is the legislative package that has changed the law so employers now have a Positive Duty to eliminate sex discrimination, sex-based harassment, sexual harassment, hostile workplaces on the basis of sex and victimisation from their workplaces.
  3. The Respect@Work website.
  4. The way everyone should behave towards each other at work.