What is the new positive duty?

Under the Sex Discrimination Act, employers and ‘persons conducting a business or undertaking’ have a legal duty to take ‘reasonable and proportionate measures’ to eliminate, as far as possible:

• 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; and

• related acts of victimisation.

The new positive duty aims to create systemic change by preventing unlawful conduct from happening in the first place, rather than reacting to conduct after it has occurred and already caused harm.

From 12 December 2023, the Commission will have powers to enforce compliance with the new positive duty, including by:

• conducting inquiries into compliance with the positive duty by a business and providing recommendations to achieve compliance;

• issuing a compliance notice specifying action that a business must take, or refrain from taking, to address any non-compliance;

• applying to federal courts for an order to direct compliance with a compliance notice; and

• entering into enforceable undertakings with a business under which the business agrees to do, or refrain from doing, certain things.

What does the new positive duty mean for employers in Victoria?

A positive duty on Victorian employers already exists under the Equal Opportunity Act 2010 (Vic) (the EO Act’). Section 15(2) of the EO Act requires employers in Victoria to take ‘reasonable and proportionate measures to eliminate … discrimination, sexual harassment or victimisation as far as possible.’

The new positive duty therefore complements the positive duty already imposed on Victorian employers under the EO Act. 

What is required for employers to comply with the new positive duty?

The Commission’s guidance on the new positive duty is intended to help businesses understand their positive duty; the Standards that they are expected to meet; and the actions that they can take to assist them to satisfy their legal obligations.

The Standards set out by the Commission address the following areas –

1. Leadership

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

Senior leaders   are 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 regularly review the   effectiveness of these measures and update workers.

Senior leaders   are visible in their commitment to safe, respectful and inclusive workplaces   that value diversity and gender equality.

2. Culture

Businesses foster   a culture that is safe, respectful and inclusive and values diversity and   values gender equality. This culture empowers workers (including leaders and   managers) to report relevant unlawful conduct, minimises harm and holds   people accountable for their actions. 

3. Knowledge

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

Businesses 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; and

• 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

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

5. Support

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

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

6. Reporting and Response

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

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

Consequences are consistent and proportionate.

7. Monitoring, Evaluation and Transparency

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

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

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

The guidance also includes practical examples of actions employers can take to meet each of the standards, depending on the size, nature and circumstances of their business.

How can employers avoid vicarious liability for employees’ unlawful conduct?

Employers can be held vicariously liable for unlawful conduct committed by their employees in connection with their employment, unless they can demonstrate that they took ‘all reasonable steps’ to prevent the unlawful conduct from occurring.

Whether an employer has taken ‘all reasonable steps’ to avoid vicarious liability in a particular case is a matter to be determined by a court, not the Commission. However, following the Commission’s guidance material will help employers to demonstrate that are not vicariously liable under the Sex Discrimination Act.

Jasmine O’Brien
Principal
T +61 3 9611 0149
jobrien@sladen.com.au