Under the Sex Discrimination Act 1984 (Cth), organisations and businesses have a positive duty to prevent, so far as possible, the occurrence of the following unlawful acts:
Discrimination in the workplace on the basis of sex, work-related sexual harassment, sex-based harassment related to workplace conduct, and creating a hostile work environment due to sex-related victimization.
The Commission calls this conduct “relevant misconduct.”
This new positive duty was introduced in December 2022. It places a legal obligation on organisations and businesses to take proactive and meaningful steps to prevent relevant unlawful conduct from occurring in the workplace or in relation to work. Taking preventive measures helps to ensure a safe, respectful and inclusive working environment.
This significant change requires organizations and businesses to shift their focus to proactively preventing sexual harassment, gender discrimination, and other related misconduct in the workplace, rather than reacting after it has occurred.
All organisations and businesses in Australia that have obligations under the Sex Discrimination Act, regardless of their size or resources, must meet their affirmative obligations. This includes sole traders, the self-employed, small businesses, large corporations and governments.
The positive duty was a key recommendation of Respect@Work, a groundbreaking report published in March 2020 by the committee led by former Sex Discrimination Commissioner Kate Jenkins.