The positive duty set out in section 47C of the Sex Discrimination Act 1984 (Cth) (SDA) requires organisations to take positive steps to prevent and/or eliminate sexual and sex-based discrimination in the workplace. It therefore requires numerous systems and processes to be implemented to ensure compliance.
Whether an organisation has satisfied its positive duty will be determined objectively. The SDA requires the Australian Human Rights Commission (AHRC) and the Courts to consider each of the matters set out below:
- The size, nature and circumstances of the business or undertaking;
- The resources of the organisation or business, whether financial or otherwise;
- The practicability and the cost of measures to eliminate the relevant unlawful conduct; and
- Any other relevant matter.
From 12 December 2023, the AHRC has had the power to enforce compliance with the positive duty in the SDA.
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