The positive duty to prevent sex and gender-based harassment and other unlawful discrimination in the workplace
By Johan Myburgh, Special Counsel and Principal Workforce Advisor, Legal and Workforce
Recent changes to the Work Health and Safety Regulation 2011 (Qld) and the recent passing of the Respect at Work and Other Matters Amendment Act 2024 Qld (the Act) have introduced new obligations on Queensland workplaces, including Local Government Council’s, to pro-actively manage the risks of sexual harassment and sex or gender-based discrimination and other objectionable conduct under anti-discrimination legislation.
The Act followed the Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces Report and the Building Belonging – Review of Queensland’s Anti-Discrimination Act 1991, which found serious gaps between public understanding of discrimination and the available protections. The Report also found that the Queensland system is reactionary rather than having a preventative focus.
The Act amends the Anti-Discrimination Act 1991 Qld (ADA), commencing 1 July 2025, and introduces reforms to strengthen protections for Queensland workers experiencing sexual harassment and sex or gender-based discrimination, vilification, victimisation and other objectionable conduct prohibited by the ADA. To see more information about these changes please read Understanding the Respect at Work and Other Matters Amendment Bill 2024.
One of the major reforms includes the introduction of a positive duty in Queensland workplaces.
The Queensland Human Rights Commission (QHRC) states that from 1 July 2025, workplaces will have a legal requirement to prevent discrimination, rather than respond to problems after they occur.
This is called the ‘positive duty’.
The ‘positive duty’ means that:
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Workplaces need to take reasonable steps to prevent unlawful discrimination, as far as possible on the Attributes protected under the ADA; and
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Requires workplaces to take all reasonable steps to prevent sexual harassment, vilification and other unlawful conduct under the ADA.
The QHRC says the changes will importantly shift the focus to prevention through the introduction of a positive duty.
The amendments to the ADA follow changes to the Work Health and Safety Regulation 2011 (Qld) (the WHS Regulation) regarding the prevention of sexual harassment and sex and gender-based harassment at work. These changes provide:
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From 1 September 2024 – there is express obligations on workplaces regarding the proactive management and prevention of risks to health, safety and wellbeing from sexual harassment and / or sex and gender-based harassment at work.
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Starting 1 March 2025 – a requirement to prepare a prevention plan to manage identified risks dealing with sexual harassment and / or sex and gender-based harassment.
Councils are encouraged to commence reviews of their current policies relating to workplace conduct, in particular policies addressing discrimination, harassment, sexual harassment and vilification.
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If you have any questions with regard to these changes please don’t hesitate to contact the Peak Services Legal team on 07 3000 2148 or at peaklegal@wearepeak.com.au.