'The purpose of the positive duty is the creation of safer, more inclusive and respectful workplaces throughout Australia'
The Australian Human Rights Commission (AHRC) now has the power to investigate and enforce compliance with the positive duty to ensure the prevention of sexual discrimination and harassment in workplaces.
The "positive duty," introduced in December 2022, imposes a legal obligation on employers to take steps to prevent relevant unlawful conduct including:
- 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 AHRC's newest function grants it the regulatory powers to ensure that businesses are meeting the positive duty requirements.
"The Australian Human Rights Commission will have the authority to ensure and inquire into a duty holder's compliance with the positive duty," said Sex Discrimination Commissioner Anna Cody in a statement.
On Tuesday, the AHRC also published a new Compliance and Enforcement Policy outlining how it plans to exercise its new functions and how it can support duty holders.
"By ensuring compliance with the positive duty obligations, the commission, alongside Australian organisations and businesses, is taking significant strides towards fostering meaningful cultural change," Cody said.
Positive duty
The concept of positive duty was introduced in December 2022 to fulfill a key recommendation in the landmark Respect@Work Report, which was published in March 2020.
"The purpose of the positive duty is the creation of safer, more inclusive and respectful workplaces throughout Australia," Cody said.
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In 2022, one in three workers in Australia said they experienced sexual harassment in the last five years, according to AHRC data. Half of these incidents are repeated, with half of ongoing for more than a year.
With the positive duty requirements, Cody said employers are now obligated to focus on actively preventing these unlawful conducts connected to work, instead of responding after it happens.
"This is an opportunity for Australian workplaces to become what they should be – safe, inclusive, gender-equal, respectful, and free from sexual harassment and sex discrimination," the commissioner said.