Take reasonable and proportionate measures to prevent sex discrimination, sexual harassment and victimisation (positive duty)
Employers have a proactive duty to prevent workplace sexual harassment — AHRC has enforcement powers from December 2023.
Who must comply
Every employer and every PCBU in Australia, whatever its size: sole traders with workers, partnerships, companies, not-for-profits and public sector employers. Size and resources affect what measures are reasonable and proportionate, not whether the duty applies.
What triggers it
Employing anyone, or conducting a business or undertaking in which workers carry out work; the duty extends to conduct by the duty holder's agents and to conduct by any person towards its employees or workers.
When due
Ongoing. If the Commission issues a compliance notice, it specifies a reasonable period (at least 21 days) to take the required action; reconsideration or court review must be sought within 21 days.
Evidence required
Risk assessment of sex discrimination, sexual harassment and hostile environment risks, including from third parties; prevention plan and policies; leadership accountability and reporting; training records; reporting and complaints procedures with records of responses; monitoring and review of the effectiveness of measures.
Max penalty
No direct civil penalty attaches to section 47C. If an inquiry finds non-compliance, the Commission President may give a compliance notice specifying action to take (AHRC Act s 35F); if it is not complied with, the President may apply to the Federal Court or the Federal Circuit and Family Court for an order directing compliance and any other order the court considers appropriate (s 35J). Section 47C is also enforceable through undertakings under Part 6 of the Regulatory Powers Act (s 35K)
Summary
Section 47C of the Sex Discrimination Act 1984 (Cth) requires every employer and every person conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination in employment, sexual harassment, harassment on the ground of sex, hostile workplace environments, and related victimisation. The duty covers conduct by the duty holder itself, its employees or workers and its agents, and also conduct by third parties, such as customers or clients, towards its employees or workers. What is reasonable and proportionate depends on the size, nature and circumstances of the business, its resources, and the practicability and cost of the measures (s 47C(6)). The duty sits alongside, and does not limit, work health and safety duties. Division 4A of the Australian Human Rights Commission Act 1986 lets the Commission inquire into compliance, issue compliance notices and accept enforceable undertakings.
Enforced by
Source legislation
Topics
Related
Frequently asked questions
- Who must comply with Take reasonable and proportionate measures to prevent sex discrimination, sexual harassment and victimisation (positive duty)?
- Every employer and every PCBU in Australia, whatever its size: sole traders with workers, partnerships, companies, not-for-profits and public sector employers. Size and resources affect what measures are reasonable and proportionate, not whether the duty applies.
- What triggers Take reasonable and proportionate measures to prevent sex discrimination, sexual harassment and victimisation (positive duty)?
- Employing anyone, or conducting a business or undertaking in which workers carry out work; the duty extends to conduct by the duty holder's agents and to conduct by any person towards its employees or workers.
- When is Take reasonable and proportionate measures to prevent sex discrimination, sexual harassment and victimisation (positive duty) due?
- Ongoing. If the Commission issues a compliance notice, it specifies a reasonable period (at least 21 days) to take the required action; reconsideration or court review must be sought within 21 days.
- What is the maximum penalty for Take reasonable and proportionate measures to prevent sex discrimination, sexual harassment and victimisation (positive duty)?
- No direct civil penalty attaches to section 47C. If an inquiry finds non-compliance, the Commission President may give a compliance notice specifying action to take (AHRC Act s 35F); if it is not complied with, the President may apply to the Federal Court or the Federal Circuit and Family Court for an order directing compliance and any other order the court considers appropriate (s 35J). Section 47C is also enforceable through undertakings under Part 6 of the Regulatory Powers Act (s 35K)
- What evidence is required for Take reasonable and proportionate measures to prevent sex discrimination, sexual harassment and victimisation (positive duty)?
- Risk assessment of sex discrimination, sexual harassment and hostile environment risks, including from third parties; prevention plan and policies; leadership accountability and reporting; training records; reporting and complaints procedures with records of responses; monitoring and review of the effectiveness of measures.
Source: https://humanrights.gov.au/our-work/sex-discrimination/projects/positive-duty-under-sex-discrimination-act. Rules Mate is not a law firm. Always verify against the live regulator source before acting.