Enforcement of Australia’s Sex Discrimination Act and prospective changes to workplace psychosocial hazard obligations.

Following amendments effective 12 December 2023, the Australian Human Rights Commission (AHRC) will have expanded powers to enforce the Sex Discrimination Act, which mandates organisations proactively combat sex discrimination and harassment at all levels. This prompts a comprehensive examination of enforcement powers, leadership standards, and the evolving regulatory landscape for psychosocial hazards under state laws.

The Sex Discrimination Act

Australia’s Sex Discrimination Act (SDA) outlaws discrimination based on gender, gender identity, sexual orientation, marital or relationship status, family responsibilities, or pregnancy. The SDA was amended in December 2022 with new “positive duties”, which obligate organisations to proactively eliminate sex-based discrimination, harassment, and related hostile environments and victimisation. This marked a change toward active prevention of discrimination from the previous reactive stance.

Amendments for 2023 grant the AHRC new powers to investigate and enforce compliance with the SDA’s positive duties. These expanded enforcement powers will take effect 12 December 2023. More than ever, organisations must ensure their culture and leadership structures prevent discriminatory incidents from occurring. This obligation extends beyond conduct within teams to cover all levels of leadership, including company boards.

To help organisations comply with the act, the AHRC has identified seven standards on which to focus:

• Leadership – Senior leaders must familiarise themselves with the positive duty requirements and exemplify in their behaviour the standards for equality and inclusion.
• Culture – Employees must have a safe and respectful workplace culture and a risk-free means of reporting misconduct to leadership.
• Knowledge – Employers should publish inclusivity policies and educate employees on their rights and responsibilities.
• Risk management – A risk-based approach to SDA compliance should be applied, requiring all stakeholders to acknowledge and work to eliminate the health and safety hazards associated with workplace discrimination.
• Support – Employees must have access to counselling or other services should they experience or witness discriminatory conduct.
• Reporting and response – Employees must have well-communicated options for reporting unlawful conduct, and employers must respond in a manner that minimises harm to victims.
• Monitoring, evaluation and transparency – Employers are expected to collect data on workplace conduct and demonstrate that the data is used to improve workplace culture and prevent unlawful behaviour.

Most companies’ codes of conduct and internal policies are anticipated to already address the December 2022 obligations and will therefore not be impacted by the AHRC’s newly expanded powers of enforcement. However, please contact Acclime if any assistance is required to review and update internal policies or other records.

Prospective regulation of psychosocial hazards under state laws

In addition, we note the potential for updated state-based work health and safety (WHS) laws that relate to organisations’ obligations to address psychosocial hazards. To summarise, companies must reduce psychosocial risks to as low as reasonably practical, as is already explicitly mandated in most states.

In Victoria, 2004’s Occupational Health and Safety Act requires employers to provide and maintain a safe working environment without health risks so far as is reasonably practical. ISO 45003 also provides guidelines for managing psychosocial risks based on ISO 45001.

New Victorian regulations are expected to be introduced with the objective of better-addressing risks to workplace psychological health. This regime will likely include reporting obligations to Worksafe by organisations with more than 50 employees.

Acclime will continue to monitor the development of these prospective new regulations.