Who must take reasonable and proportionate measures to prevent sex discrimination?

Employers have a proactive duty to prevent workplace sexual harassment — AHRC has enforcement powers from December 2023.

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.

Applies when the business has employees, contractors or labour hire.

How the regulator frames it: 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.

Jurisdiction: Commonwealth law, so the test is the same in every state and territory.

Outcome across the 35 industries Rules Mate maps (35 of 35: depends on size or structure).

The answer is the same in every industry: depends on size or structure. Industry does not change who must comply.

Structure does not change the answer across all industries: for every structure the answer is "depends on size or structure".

Each line is one run of the Rules Mate applicability engine for a single business profile, with the reason the engine gives:

• Pty Ltd company in real estate agents with 6–19 employees, turnover $1M–$3M: applies. You have employees (6–19)
• Pty Ltd company in real estate agents with no employees, turnover $100K–$1M: does not apply. Requires employees, contractors or labour hire.

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.

Frequency

Ongoing

Evidence to keep

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.

Status

Current

Priority

Critical

Maximum 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)

Rules Mate has not yet classified the audit or assurance level for this obligation. Any audit, review or certification requirement is set by the regulator source listed below.

If this obligation applies to you, so do these 2: the engine uses the same rule for each.

• Manage psychosocial hazards at work
• Psychosocial Hazards Code of Practice (model + jurisdictional)

Rules Mate tracks 1 published obligation tagged "discrimination", 1 of them rated critical. For a professional services Pty Ltd company with 6–19 employees operating in every state, 1 of those apply outright. This obligation is rated critical priority, and is an ongoing duty.

Regulated by Australian Human Rights Commission and Fair Work Commission.

AHRC: National human rights institution. Investigates and conciliates complaints under federal anti-discrimination legislation including race, sex, age, and disability discrimination Acts.

FWC: National workplace relations tribunal. Sets modern awards and the national minimum wage, resolves unfair dismissal and general protections disputes, and registers enterprise agreements.

• Australian Human Rights Commission
• Fair Work Commission

Sex Discrimination Act 1984: Federal sex discrimination Act.

• Sex Discrimination Act 1984

Free tools that help with this obligation:

• Compliance calendar builder