New positive duty on employers to prevent workplace sexual harassment, sex discrimination and victimisation

In December 2022, a new positive duty on employers and persons conducting a business or undertaking (PCBUs) to eliminate workplace sex discrimination and harassment commenced.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth), introducing a positive duty on employers and PCBUs to eliminate:

• workplace sexual harassment, sex discrimination and sex-based harassment;
• conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; 
• and, certain acts of victimisation.

This important change requires employers and PCBUs to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding only after it occurs. The new positive duty imposes a legal obligation on employers and PCBUs to take proactive and meaningful action to prevent workplace sexual harassment, sex discrimination, sex-based harassment, conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex and victimisation from occurring in the workplace or in connection to work.

New regulatory powers have been conferred on the Australian Human Rights Commission to investigate and enforce compliance with the positive duty. Recognising that employers and PCBUs will need time to make changes to ensure that they comply with their new legal obligations, the Commission’s compliance powers will commence in December 2023.

The positive duty was a key recommendation of the Commission’s landmark Respect@Work Report, led by Sex Discrimination Commissioner Kate Jenkins, published in March 2020. The Commission is currently developing practical education and guidance materials to help employers and PCBUs understand their responsibilities and the changes they may need to make to meet these new legal obligations. These materials will be made publicly available on the Respect@Work website and the Australian Human Rights Commission’s website.

Despite the 12-month transition period, Commissioner Jenkins urges workplaces to “implement change now, so that people may enjoy safer workplaces, free from sexual harassment, sooner.” 

A number of resources are already available on the Respect@Work website to support employers and PCBUs to take action to more effectively prevent, and respond to, workplace sexual harassment.

Respect@Work recommended the adoption of a new workplace prevention and response model structured around seven inter-related domains:

• Leadership
• Risk assessment and transparency
• Culture
• Knowledge
• Support
• Reporting
• Measuring

Tools and resources aligned to each of these domains can be found on the Respect@Work website.