Every Australian employer has new duties under the Sex Discrimination Act – here’s what you need to know

It was easy to miss at the time, but in December 2022 changes to the federal Sex Discrimination Act came into affect. They were recommended by the Australian Human Rights Commission (AHRC) following its widely publicised inquiry Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces, and legislated in November.

The legal changes have been made to better protect workers from sexual harassment and other forms of sex discrimination, harassment, and unfair treatment in the workplace, and they impose some significant new responsibilities on every Australian employer, including every NFP organisation with even a single staff member.

Employers now have “a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

• Discrimination on the ground 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 ground of sex
• Related acts of victimisation.”

Don’t stress though, because there are still a number of months for you to get your head around the new responsibilities, and plan how your organisation will update it’s policies and practices to reflect them.

The Act gives new functions and powers to the AHRC to monitor and assess compliance with these responsibilities, starting in December 2023. And to that end they have just released some new guides for employers to understand their new obligations and implement processes to comply.

Unfortunately the AHRC’s guides are pretty dense – even their “Quick Guide” is 36 pages (!) of text – and reads like it was definitely written by a group of lawyers.

So in the interest of creating a more truly “quick” guide to these significant changes, here are the seven new standards that the Commission expects all organisations to implement to satisfy the ‘positive duty’ under the Sex Discrimination Act, plus some advice on what to do next to make sure your organisation is compliant with these standards.

1. Leadership

Senior leaders must understand their obligations under the Sex Discrimination Act and have up-to-date knowledge about relevant unlawful conduct.

Senior leaders must be responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented. Senior leaders must regularly review the effectiveness of these measures and update workers.

Senior leaders must be visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality. They set clear expectations and role model respectful behaviour.

2. Culture

Organisations must foster a culture that is safe, respectful and inclusive and which values diversity and gender equality.

This culture must empower workers (including leaders and managers) to report relevant unlawful conduct, minimise harm and hold people accountable for their actions.

3. Knowledge

Organisations must develop, communicate and implement a policy regarding respectful behaviour and unlawful conduct.

Organisations must support workers (including leaders and managers) to engage in safe, respectful and inclusive behaviour through education on:

• Expected standards of behaviour, including actions and attitudes that foster equality and respect
• Identifying behaviours that constitute relevant unlawful conduct and the consequences for engaging in such conduct
• Their rights and responsibilities in relation to safe, respectful and inclusive workplaces and working relationships. This includes their role in preventing and responding to relevant unlawful conduct.

4. Risk management

Organisations must recognise that relevant unlawful conduct is an equality risk and a health and safety risk. They must take a risk-based approach to prevention and response.

5. Support

Organisations must ensure that appropriate support is available to workers (including leaders and managers) who experience or witness relevant unlawful conduct.

Workers must be informed about the available support, and can access the support, regardless of whether they report the conduct.

6. Reporting and response

Organisations must ensure that appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated to workers and other impacted people.

Responses to reports of relevant unlawful conduct must be consistent and timely, and minimise harm to, and victimisation of, people involved.

And consequences must be consistent and proportionate.

7. Monitoring, evaluation and transparency

Organisations must collect appropriate data to understand the nature and extent of relevant unlawful conduct concerning their workforce.

Organisations must use the data they collect to regularly assess and improve the work culture, as well as to develop measures for preventing and responding to relevant unlawful conduct.

Organisations must be transparent about the nature and extent of reported behaviours that could constitute relevant unlawful conduct concerning their workers and actions taken to address it.

Next steps

So where should your organisation begin it’s journey to implementing these seven standards?

• If you don’t yet have a written policy on sexual harassment at work, read our guide on how can take the lead on preventing sexual harassment, including detail on all the elements that should be included in your policy;
• Download the AHRC’s example workplace sexual harassment policy that you can easily customise for your organisation;
• Read more about how to elevate diversity and gender equity in your recruitment process and in your organisation as a whole;
• For in-depth information to implementing the seven standards in practice, read Section 6 of the AHRC’s Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) (60 pages) or try Section 10 their Quick Guide for a slightly less in-depth version, including 17 pages of implementation advice.