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Important Legislation Update | Positive Duty

We would like to make you aware of a new requirement called “Positive Duty” that comes into effect from 12 December 2023. This is a new requirement under the Sex Discrimination Act.

Under the Sex Discrimination Act, organisations and businesses now have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

  • discrimination on the grounds 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 grounds of sex
  • related acts of victimisation.

The Commission refers to this conduct as ‘relevant unlawful conduct’.

The new positive duty was introduced in December 2022. It imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work. Taking preventative action will help to create safe, respectful and inclusive workplaces. This important change requires organisations and businesses to shift their focus to actively preventing workplace sexual harassment, sex discrimination and other relevant unlawful conduct, rather than responding only after it occurs.

Regardless of their size or resources, all organisations and businesses in Australia that have obligations under the Sex Discrimination Act must meet the positive duty. This includes sole traders and the self-employed, small, medium and large businesses, and government.

What does this mean for you?

This means you will need to include training and education for your workforce around sexual harassment, sex-based harassment or victimisation in the workplace. Your response should include regular conversations with workers about behaviour, being clear with staff about what to do if they experience or witness unlawful behaviour, and clear messages from the owners of the business that this unlawful behaviour will not be tolerated.

If you haven’t taken proactive steps to discharge your ‘Positive Duty’ by 13 December and you have an incident in your workplace you could be exposed to an investigation by the regulators leading to reputational and financial damage.

Learn More

Need to know more about what ‘positive duty’ means for your business? Watch this informative one hour webcast by Australian Business Lawyers & Advisors that will guide you through the legislation step-by-step.

The Commission has developed practical guidance materials to help organisations and businesses to understand their responsibilities and the changes they may need to make to meet these new legal obligations.