Every size of business – including micro businesses, sole traders and self‑employed small business owners - needs to comply with the positive duty in the Sex Discrimination Act.
Here’s how you can help create a safe and inclusive workplace, protecting both your people and your business.
What is positive duty?
Everyone has the right to feel safe and respected in their workplace. To support this human right, the Sex Discrimination Act 1984 was updated in December 2022 to include positive duty requirements.
Positive duty aims to reduce the risk of sexual and sex-based harassment, sex discrimination, hostile workplace environments and victimisation across workplaces in Australia.
In the past, it was more common for a workplace to respond to complaints or change their approach to risks after something had happened. Now, positive duty requirements are in place to help prevent these kinds of incidents from occurring at all.
The Human Rights Commission is responsible for investigating and enforcing compliance with positive duty and commenced enforcement and compliance functions in December 2023. They have created a short video to help explain what the requirements mean.
Positive duty requirements for your small business
As a small business owner, it’s your responsibility to treat positive duty seriously. Just as you take action to keep yourself and any employees safe with your workplace environment, work processes and equipment, positive duty should form part of your ongoing commitment to workplace health and safety.
In line with legislation changes from 2023, meeting positive duty requirements means that you need to take what’s known as “reasonable and proportionate measures” to proactively prevent workplace sexual harassment and discrimination. The legislation requires reasonable and proportionate measures to eliminate, as far as possible, specified conduct.
When it comes to abiding by the guiding principles of positive duty requirements, the best place to start can be talking with your team about what a safe and respectful workplace looks like to all of you. You can also discuss why this is important. In the structure of your business, aim for gender equality with equal rights and opportunities for everyone within your team.
It’s important to think about your team and how different staff members might face different risk factors in their roles and have diverse backgrounds which could impact their experience of discrimination and harassment. The Human Rights Commission also encourages businesses to be person-centred and trauma informed, which includes supporting your team’s choices, safety, making an effort to understand trauma and protecting your team from harm.
A positive duty checklist for small business
Here are the seven standards outlined for positive duty requirements – and an example of what each these standards might look like for your business.
Leadership
Positive duty involves setting the ‘tone from the top’. This means anyone in a leadership role should always model safe and respectful behaviour towards others, including your team members, customers and suppliers.
Culture
Aim to build a diverse workplace culture where everyone feels safe and respected. Make sure you are clear on what is and isn’t acceptable behaviour within your team and with others. Have a policy in place to handle inappropriate and unlawful behaviour, including how staff can report any incidents and how these will be managed.
Knowledge
Commit to continuous learning to be clear on everyone’s rights and responsibilities for respectful and positive relationships within your team. This could start with your induction process, with specific training to help your team understand positive duty and how to avoid harm, and why this is essential to your workplace.
Risk Management
Be aware of the many risks that can contribute to discrimination and harassment, including workplaces that lack diversity, isolated or remote workplaces, and work environments, events or occasions where alcohol is served. As an example, you can make sure your physical workplace is free from offensive or potentially offensive material, which might include offensive images in work areas or on clothing, and music with offensive lyrics.
Support
Have supports in place for anybody who needs to talk to someone in your business about something they are concerned about. You can also make sure your team are aware of who they can speak with for support outside of your workplace.
Reporting and response
Your business should have a clear process in place for anybody to report harmful behaviour if it occurs. It’s just as important to make sure your team understands what processes are in place for you to handle any incidents in a timely and appropriate way.
Monitoring, evaluation and transparency
Check in with your team regularly to make sure your approach to their safety and wellbeing is working. If they have concerns, look at how you could change or update your policies or procedures to help keep your team feel safe and respected.
You can also explore the Human Rights Commission’s Small Business Hub which has been created to help support small business owners with a range of information, resources and training modules.
Learn more about positive duty recommendations from the Australian Human Rights Commission.
More information
- Contact our business advisory service for free and confidential advice.
- Learn more about your employer obligations.
- Learn more about your legal responsibilities.
- Sign up to our small business news emails to get important updates for small business owners delivered straight to your inbox.
