The federal government passed the Respect at Work Bill on 28 November 2022.

As a direct result, Australia is moving towards proactively preventing workplace sexual harassment and sex discrimination rather than merely reacting to incidents that are reported.

The positive duty for all Australian workplaces was introduced as a central amendment in the Respect at Work Legislation. This duty requires that employers actively eliminate sexual harassment, sex-based discrimination, hostile work environments, and victimisation.

Responsibility and Compliance

Australian businesses must adopt measures to eliminate these forms of relevant unlawful conduct as much as possible.

The Australian Human Rights Commission (the Commission) released guidelines on compliance with the positive duty, including seven standards businesses must satisfy.

Enforcement Date

From 12 December 2023, the Commission has the authority to enforce compliance with the positive duty in the Sex Discrimination Act 1984 (cth).

What is the positive duty of the Sex Discrimination Act

The positive duty requires that Australian organisations (including all employers) must eliminate sexual harassment, sex-based discrimination and victimisation. Rather than simply responding to incidents in the workplace, the positive duty means employers should take reasonable and proportionate measures to eliminate unlawful conduct, such as:

Who does the positive duty apply to?

Every entity in Australia governed by the Act must adhere to the positive duty. This means:

  • sole traders
  • small businesses
  • large corporations
  • universities and other educational institutions
  • not-for-profits, clubs and peak bodies
  • government entities

The scope of the positive duty is broad. The coverage extends not only to employees but also to workers, agents and third parties with whom employees come into contact in connection with their work. It even considers how third parties treat employees in a work context, for example, customers, delivery drivers, and other service workers.

Positive Duty Obligations

The positive duty is adaptable to organisations of varying sizes and structures. The AHRC understands that businesses differ in size and nature. In practice, an activity that is financially viable for a large company to implement may simply be impractical and too costly for small businesses.

When determining if an organisation has taken all reasonable and proportionate measures to eliminate relevant unlawful conduct, the Commission will consider:

  • the number of employees;
  • the nature of the industry;
  • the operational location (physical and online);
  • risk factors present in the business or organisation.

What does this mean for employers in the social and community sectors?

Small business employers may be permitted less formal mechanisms, such as using free resources and services and communicating policies and behavioural expectations regularly to employees. 

Large, well-resourced entities may require more sophisticated measures like employee training, anonymous reporting tools for disclosing misconduct and comprehensive policies.

For all organisations the goal is the same: Employers must take proactive and meaningful action to prevent workplace sexual harassment, discrimination and victimisation.

What are the seven (7) standards of the positive duty?

To effectively satisfy the positive duty under the Sex Discrimination Act 1984 (cth) (Sex Discrimination Act), the Commission has set out seven key standards. This is a concise breakdown of the standards as follows:

  • Leadership

Senior leaders must understand their legal obligation under the Sex Discrimination Act including the specificities of unlawful conduct. Their responsibility is to ensure that proactive and responsive measures are developed, reviewed, and clearly communicated to workers. Furthermore, leaders should exemplify respectful behaviour and be committed to furthering inclusion and gender equality in the workplace.

  • Culture

Organisations should foster a safe, respectful, and inclusive workplace culture. This environment should inspire confidence in workers, motivating them to report instances of misconduct, knowing that the system will prioritise their well-being and address any issues.

  • Knowledge

Organisations must establish a comprehensive policy on respectful behaviour and the repercussions of misconduct. This framework should provide workers with clarity on behavioural expectations, mechanisms to detect inappropriate actions, and a thorough understanding of their rights and responsibilities within the workspace. Bystander training may be an appropriate strategy for workplace safety and harassment prevention.

  • Risk Management

Organisations must be proactive in identifying and assessing potential risks associated with misconduct, taking into account both equality and the well-being of their workforce. Collaboration with stakeholders on identifying these risks is essential. Strategies should be developed to respond to and, more importantly, prevent these risks.

  • Support

Offering robust support systems is non-negotiable. Workers who witness or undergo misconduct should have immediate access to resources and assistance. This support should remain accessible regardless of whether the incident has been formally reported.

  • Reporting and Response

Clear channels for reporting misconduct should be readily available to workers. Regular communication about these pathways is essential. Responses to reports should be swift, consistent, and prioritised to minimise harm to those involved.

The Commission encourages organisations to implement anonymous reporting platforms like Elker to satisfy the positive duty. Anonymous reporting platforms assist in the early detection of workplace issues and offer secure channels for reporting misconduct.

  • Monitoring, Evaluation and Transparency

Consistent data collection on workplace misconduct is crucial. Organisations should harness this data to refine their work culture and bolster preventive measures. An open dialogue about the nature, extent, and subsequent actions related to reported behaviours ensures a transparent and accountable workplace environment.

The seven standards are interconnected, meaning actions addressing one might also cater to others. Every entity should adhere to the seven standards, but the application will vary depending on what’s reasonable for each entity. While all entities, even those without employees, are expected to comply, only applicable aspects of the standards will concern those without workers. The Commission will evaluate compliance comprehensively, emphasizing that organisations should meet all standards to eliminate discrimination, sexual harassment, and other forms of unlawful behaviour in the workplace.

A useful resource is the Positive Duty Guidelines prepared about workplace sexual harassment by the Australian federal government.  (see weblink below) 

Positive Duty Guidelines | Respect at Work (elker.com)

Jobs Australia will continue to provide periodic updates to Members about the new legislation and impacts of the positive duty on employers to prevent sexual harassment including applicable sanctions that may be imposed by the Australia Human Rights Commission. Members may contact our WR team if there are any questions about the impacts of these changes at 1800 331 915 or WR-DL@ja.com.au.

Best Regards,
The Jobs Australia Team