What is the positive duty?
The positive duty is a legal obligation for ‘persons conducting a business or undertaking (PCBU)’ and ‘employers’ under the Sex Discrimination Act 1984 (Cth) to take ‘reasonable and proportionate measures’ to eliminate the following unlawful behaviours 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
- related acts of victimisation.
What is expected of my business?
The measures expected for your business will depend on the size and nature of your business and the resources available. The Australian Human Rights Commission provides four Guiding Principles and seven Standards which they expect all relevant organisations and businesses to meet to satisfy the positive duty.
Guiding Principles:
- Consultation – Create safe proactive opportunities to talk to workers across all diversities about what they need at work to feel safe and eliminate unlawful behaviours
- Gender Equality – Create a culture where people of all genders have equal rights, rewards, opportunities and resources
- Intersectionality – Recognise unsafe and disrespectful workplace behaviours may have a heightened impact due to intersectionality. Identify and address these unique risk factors and intersecting disadvantage
- Person Centred & Trauma Informed – Prioritise individual needs, values and preferences. Demonstrate an understanding of trauma, how it affects people and avoid causing further harm
Standards for compliance with the positive duty:
The seven Standards are a framework to help you determine the practical actions to take to eliminate relevant unlawful behaviours and to satisfy the positive duty – https//:humanrights.gov.au
- Leadership
- Culture
- Knowledge
- Risk Management
- Support
- Reporting & Response
- Monitoring, evaluation & transparency
How do I comply?
An effective way to meet the positive duty is to assess each of the Standards against your current practices and develop a plan which outlines what your business will need to do to address meeting each Standard. You may already have policies and procedures on Sexual Discrimination, Harassment, Diversity etc, however these are no longer enough, as the focus has moved significantly to prevention rather than just responding to a workplace incident. This is where most businesses will need to focus – on their prevention activities.
How can HRM help?
Attend our workshop for more information on developing your plan or contact one of our HR Consultants.
