The Positive Duty: prevention is better than cure

The problem with treating the symptoms rather than the cause

A friend of mine runs a small-to-medium sized businesses.

Recently, she rang me and said, ‘Look, this Positive Duty stuff is a nightmare. It’s not like we don’t have enough compliance issues to deal with.’

‘I think you’re looking at this from the wrong angle,’ I replied.

‘What do you mean?’ she asked.

‘You know how you dread an incident occurring in one of your businesses,’ I said.

‘Yes,’ she replied.

‘Sex discrimination and sexual harassment are like a disease,’ I explained. ‘They are slowly destroying our workplaces. In the past, all we did was treat the symptoms. All the evidence shows this is ineffective. The Positive Duty is trying to prevent a disease from developing in your workplace. It’s a gift not a burden. It can help you build stronger and more cohesive teams. Ultimately, it can help you build a more successful business.’

What is the Positive Duty? 

The Sex Discrimination Act 1984 (Cth) (SDA) now includes a Positive Duty that requires employers to take ‘reasonable and proportionate measures to eliminate 5 types of behaviour:

1. Sex discrimination in a work context
2. Sexual harassment in a work context
3. Sex-based harassment in a work context
4. Conduct that amounts to subjecting a person to a hostile work environment on the grounds of sex
5. Victimisation.

What is the Positive Duty trying to do? 

The Positive Duty is trying to achieve gender equality by creating workplaces that are safe, respectful and inclusive.

Who does the Positive Duty cover? 

The Positive Duty is broad and covers:

•  employers
•  employees and workers
•  agents.

In some cases, the Positive Duty requires employers to take reasonable and proportionate measures to protect their employees from ‘unlawful conduct’ by third parties such as clients and customers.

What locations does the Positive Duty include?

The Positive Duty includes a wide range of locations.

Obviously, it covers your physical workplace.

It can also apply to working online from home, and to when your employees are working at a client’s office or home.

It applies to work-related activities such as training courses, conferences, trips and work-related social events.

You now have a duty to keep your people safe in any of these contexts.

Why is the Positive Duty such a major change?

In the past, we were treating the symptoms

So, why has the Australian Government changed the law to include a Positive Duty?’

In the past, just as a doctor often treats the symptoms of disease after they have manifested, the SDA was reactive and treated the symptoms of the problem.

More specifically, the law relied on individuals to complain and the law stepped in after an incident had occurred.

The problem with this approach is that it was not effective.

Gender equality

If we take a look at the 2023 statistics from the Workplace Gender Equality Agency, we discover that:

•  Australia’s gender pay gap is still 21.7%
•  On average, for every $1 a man earns, a woman earns 78 cents.
•  On average, women earn $26,393 less than men.
•  One is 4 boards have no women
•  Only 22% of CEOs are women.

Sexual harassment

According to the Australian Human Rights Commission, workplace sexual harassment in the past 5 years impacted:

•  33% of people overall
•  41% of women
•  26% of men
•  46% of workers who identify as LGBTQI+
•  56 of Aboriginal and Torres Strait Islander people
•  48% of workers with a disability.

Focusing on prevention

With the insertion of the Positive Duty, the focus has shifted to prevention.

Instead of reacting after the event and focusing on the individual, the SDA now focuses on preventing sex discrimination and sexual harassment from occurring in the first place.

In this way, it is like a doctor advising a patient to adopt a more healthy lifestyle (such as taking up exercise and avoiding eating unhealthy foods) to prevent illnesses such as diabetes and heart disease developing later in life.

Implementing the Positive Duty

As an employer, when you implement the Positive Duty, you can’t take a tick a box approach to compliance.

Instead, you need to take a holistic approach to preventing sex discrimination and sexual harassment.

This involves taking 3 steps:

Step 1: Implementing 7 Standards

You need to work on:

1. Leadership
2. Culture
3. Knowledge
4. Risk Management
5. Support
6. Reporting and Response
7. Monitoring, Evaluation and Transparency

Step 2: Overlay the 7 Standards with 4 Guiding Principles

As you implement the 7 Standards, you need to focus on:

1. Consultation
2. Gender equality
3. Intesectionality
4. Taking a person-centred and trauma-informed approach

Step 3: Apply Intersectionality

You also need to consider that some groups are more adversely affected than others. Groups may be classified by:

1. Sex/gender
2. Sexual orientation
3. First nations status
4. Disability
5. Class
6. Migration status
7. Race/ethnicity.

An important change

The introduction of the Positive Duty into the SDA is the most importance change to occur in sex discrimination and sexual harassment law in the last 40 years.

We’ve moved from a ‘treating the symptoms’ model to a ‘prevention model’.

In addition, we are now taking a holistic approach that involves driving cultural, structural and systemic change within organisations and businesses.

It is a great opportunity for employers, including my friend, to make workplaces better for everyone.

Do you need help implementing the Positive Duty in your business or organisation? 

Dr Genevieve Burnett specialises in helping businesses and organisations implement the Positive Duty. If you want expert advice on how to build a workplace where everyone feels safe, respected and included, get in touch now.