What Australian small business owners need to know about the ‘positive duty’ in the Sex Discrimination Act

From December 2023, the Australian Human Rights Commission will have new powers to investigate and enforce ‘the positive duty’. This means that they can investigate small business owners that are not taking proactive steps to prevent sexual harassment and discrimination in the workplace.

Workplace sexual discrimination and harassment can have negative impacts on mental health, productivity and attendance at work, staff turnover, business reputation, workers compensation premiums and legal costs. Managing these claims can be a huge stress on small business owners who need to navigate these complex issues. But responding to a complaint or incident is not enough, you must also take proactive steps to create safe and respectful workplaces.

What do you need to know?

The Australian Human Rights Commission has created a resource for small business owners to help navigate your obligations.

• They apply to all businesses in Australia, including small businesses, sole traders and the self-employed. They apply to business owner themselves, employees, and in some cases, third parties (e.g. clients and customers).
• They covers sex discrimination, sexual harassment, sex-based harassment and hostile work environment on the ground of sex and victimisation.
• Some things that might make your workplace higher risk include dealing with third parties like clients and customers, high rate of casual or short-term employment, lack of a policy or code for standards of behaviour, and roles divided by gender.

What do you need to do?

Get to know the seven guiding principles developed by The Australian Human Rights Commission:

• Leadership: Understand your obligations and how to prevent, recognise and respond to workplace sexual harassment and discrimination. SafeWork Australia have a helpful factsheet to help small business owners prevent workplace sexual harassment.
• Culture: Maintain a safe and respectful culture where workers feel supported. The Respect@Work website has a plenty of useful resources to help you write a policy about sexual harassment and discrimination.
• Knowledge: Educate your staff about their rights and responsibilities. You could encourage them to complete the Fair Work Commissions’ online Workplace Sexual Harassment training.
• Risk management: Know how to spot risks and take action. Respect@Work has lots information on risk assessment and response, including a Risk Assessment Toolkit.
• Support: Make sure everybody knows where to find support services. Take a look at the guide to external pathways in Australia to address workplace sexual harassment to find relevant services.
• Reporting and response: Make the reporting process clear and consistent. Respect@Work has practical guidance on establishing a good practice framework for responding to reports of sexual harassment in the workplace.
• Monitoring, evaluation, and transparency: Understand the risks in your workplace and let your team know what steps you’re taking to keep them safe. If what you’re doing isn’t working, change it up like you would with any other health and safety risk. This page has some tips on effective measuring and evaluation processes.

Additional resources

• Take a look at the Fair Work Commission’s Good Practice Indicators Framework for Preventing and Responding to Workplace Sexual Harassment
• Read the detailed Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984.