Section 47C of the Sex Discrimination Act 1984 (Cth) (SD Act) requires an employer and person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, relevant unlawful conduct.
This is referred to as the positive duty. The positive duty was inserted into the SD Act by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth).
The Australian Human Rights Commission (AHRC) is responsible for compliance and enforcement of the positive duty.
A written Prevention and Response Plan is a document setting out the measures that an organisation or business will take to eliminate relevant unlawful conduct, as far as possible for the purposes of the Positive Duty.
The AHRC Guidelines highlight the role of a written Prevention and Response Plan for businesses and organisations to demonstrate various outcomes of the Guideline Standards. Whether a business or organisation has followed the Guidelines is likely to be a relevant matter for the AHRC and/or Court in assessing compliance with the SD Act’s positive duty. According to the AHRC, the prevention and management plan must be recorded in writing, e.g., in a prevention and response plan.
This resource provides an example of how a Prevention and Response Plan could be structured and is is based on the seven Standards and four Guiding Principles set out in the AHRC Guidelines in relation to the SD Act’s positive duty.
Examples are included for a hypothetical small business and how it might implement this Prevention and Response Plan subject to their size/resources and the relative risks of unlawful workplace behaviour. However, every business is different and the example will need to be adjusted to account for the characteristics and risks within a particular business. Additionally, Members may need to seek advice on other legal obligations, including in particular its WHS obligations, as unlawful workplace behaviours will usually be a psychosocial hazard.
To determine how they can comply with the positive duty and other laws, or for assistance regarding the contents of the SD Act or its potential implications for their organisation, Ai Group Members can contact the Workplace Advice Line on 1300 55 66 77 or workplaceadvice@aigroup.com.au.
Members who would like specific advice or support for their business around compliance with the positive duty and/or their obligations under the Respect@Work legislation, please contact Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au or contact the Workplace Advice Line on the above number. For advice and support on obligations under WHS legislation, please contact AI Group’s WHS Consulting Services on safety.services@aigroup.com.au or via our website here.
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