Changes through the Secure Jobs, Better Pay Act 2022 complement amendments to the Sex Discrimination Act (SDA) 1984 and highlight a new ‘positive duty’ for employers.

Victorian employers will be familiar with ‘positive duties’ already in place under the Equal Opportunity Act 2010 (Vic) and the Occupational Health and Safety Act 2004 (Vic), whereas this type of ‘positive duty’ in relation to discrimination may be a newer concept for other states.

Positive duty

So, what is a positive duty? Employers are expected to work towards ending systemic behaviours by taking all reasonable measures to eliminate discrimination, sexual harassment or victimisation as far as possible, rather than simply taking action after the harmful behaviour have already occurred.

This shift from reactive to proactive and preventative includes implementing suitable controls around the culture of the business that may foster such behaviours, and taking steps to eliminate hostile work environments by addressing the risk of inappropriate conduct by your employees, and/or any visitors, suppliers or contractors who engage with your workplace. The compliance bar is deliberately set very high.

The Commonwealth’s Fair Work Act 2009 now includes prohibition against sexual harassment, and the FWC will be able to engage in dispute resolution and issue ‘stop sexual harassment orders’ similar to the existing ‘stop bullying’ powers. The Australian Human Rights Commission (AHRC) will also have the power to enforce compliance with the positive duty under the SDA from December 2023.

The AHRC has released guidelines on how to comply with your positive duties based on the principles of consultation, gender equality, acknowledging intersectionality (the potential for a person’s experience of sex discrimination or sexual harassment to be compounded by other forms of inequality), and taking a person-centered and trauma-informed approach.

Active steps to meet your obligations

• Understand your work environment - identify inappropriate behaviours; review policies, procedures, processes and work culture; identify past evidence of systemic discrimination.
• Develop a preventative plan - identify risk areas, key issues, priorities and prevention commitments; consult to identify measures to eliminate inappropriate behaviour; communicate prevention strategies.
• Assess business capability – support leaders to drive change and build capability through role modelling and consistently holding people accountable for inappropriate and/or unlawful workplace behaviours; communicate workplace rights for anti-discrimination and inclusion; provide adequate training and refreshers for all staff; encourage/support bystanders to act safely and respond to poor behaviour.
• Risk Management - conduct risk assessments regularly to identify risk factors /hazards/potential harm/likelihood of occurrence/vulnerable people; take steps to eliminate or control workplace risk factors.
• Report and respond – consult with staff to create robust, accessible and timely complaints procedures which support participants’ wellbeing.
• Monitor and Evaluate – monitor workplace culture, service delivery, complaints and legal obligations; update prevention plans to ensure compliance, with focus on trends and key learnings.

How the Victorian Chamber can help

The challenge is that businesses effectively now must comply with a range of ‘positive duties’ and potentially respond to claims under multiple pieces of legislation.

For further assistance on how to effectively meet your workplace obligations, contact our Workplace Relations Advice Line on (03) 8662 5222. For targeted consultancy and strategic advice, VCCI’s specialist WPR team can be reached at Workplace Relations Consultants.