AHRC enforcement and compliance powers regarding the positive duty commence from 12 December 2023

From 12 December 2023, the Australian Human Rights Commission (AHRC) will have new powers to investigate and enforce an employer's positive duty to take reasonable and proportionate measures to eliminate certain types of sex-based discrimination under the Sex Discrimination Act 1985 (Cth) (SDA).

In December 2022, the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) introduced a positive duty on all persons conducting a business or undertaking, to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, sex-based harassment, hostile work environments and related acts of victimisation (Positive Duty).

AHRC powers

‍From 12 December 2023, the AHRC will have new compliance and enforcement powers in relation to the Positive Duty, including to:

• conduct inquiries, without the consent of the relevant business, into its compliance with the positive duty, if the AHRC ‘reasonably suspects’ that a business is not complying with the positive duty. This suspicion may come from information provided by government agencies, regulators, impacted individuals, unions, worker representatives or reports from the media;
• compel the production of information and documents, and examine witnesses under oath;
• issue compliance notices, specifying action that an organisation or business must take, or refrain from taking, to address non-compliance;
• apply to federal courts for an order to direct compliance with a compliance notice;
• enter into enforceable undertakings with an organisation or business under which the business agrees to do, or refrain from doing, certain things; and
• apply to the federal courts for an order to direct compliance with the undertaking, direct the payment of damages to the Commonwealth or a person who has suffered loss or damage.

AHRC guidance material

The AHRC has released a series of materials that provide guidance on the steps the AHRC expects businesses to take to comply with the positive duty. The guidance materials are available on the AHRC website.

The AHRC guidance materials make it clear that while steps such as a comprehensive appropriate workplace behaviour policy and regular staff training will go some way to discharging the positive duty, these are unlikely to be enough where proactive and preventative action have become the expectation and the new norm.

Practical steps employers should take to comply with the positive duty
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All businesses should review the AHRC guidance materials carefully and take steps to comply with the AHRC recommendations. Some measures which will assist businesses to ensure compliance with the positive duty include:

• having a comprehensive and up to date appropriate workplace behaviour policy;
• developing and implementing regular workplace behaviour training for all staff, maintaining records of staff attendance at the sessions;
• responding to any complaints about sex-based discrimination in connection with work in an effective, appropriate and timely manner;
• encouraging staff to report concerns about sexual harassment to nominated contact people within the business; and
• up skilling HR managers in conducting effective workplace investigations.