The federal parliament has recently passed legislation that will implement all 55 recommendations from the Respect@Work Report including legislating a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible.
This section discusses how organisations can take a positive duties approach to tackling workplace sexual harassment.
For more information on sexual harassment, including definitions, prevalence, the business case for prevention, myth busters, and addressing safety and respect at work, please see the Sexual Harassment section of our website.
What is a positive duty?
A positive duty requires organisations to be proactive in addressing discrimination in order to promote equality.
Previously, under the Sex Discrimination Act, an employer would be vicariously liable for sexual harassment by an employee or agent, where the sexual harassment occurred ‘in connection with’ the employee’s employment or agent’s duties.
These provisions only arise once a complaint has been made. A positive duty expands employer obligations from a reactive, complaints-based approach to a duty to proactively take steps to prevent sexual harassment and sex discrimination occurring in the first place.
Under the Sex Discrimination Act, organisations and businesses now have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:
- discrimination on the ground of sex in a work context
- sexual harassment in connection with work
- sex-based harassment in connection with work
- conduct creating a workplace environment that is hostile on the ground of sex
- related acts of victimisation.
The Commission refers to this conduct as ‘relevant unlawful conduct’.
The new positive duty was introduced in December 2022. It imposes a legal obligation on organisations and businesses to take proactive and meaningful action to prevent relevant unlawful conduct from occurring in the workplace or in connection to work. Taking preventative action will help to create safe, respectful and inclusive workplaces.
Source: Australian Human Rights Commission, The Positive Duty under the Sex Discrimination Act
The Australian Human Rights Commission has developed a number of resources for complying with the positive duty:
- Guidelines for Complying with the Positive Duty (2023)
- Information Guide on the Positive Duty
- A Quick Guide for Complying with the Positive Duty (2023)
- A Resource for Small Business on the Positive Duty (2023)
- Factsheet – Causes and Risk Factors of Sex Discrimination, Sexual Harassment and Other Unlawful Behaviours
- Factsheet – Effective Education and Training
- Factsheet – Person-centred and Trauma-informed Approaches to Safe and Respectful Workplaces
- Factsheet – Seeking Support – Counselling and Support Services
Why positive duties?
The current reactive process isn’t working to ensure that people are protected from sexual harassment.
As the Australian Human Rights Commission found:
- “Sexual harassment continues to be an unacceptably common feature of Australian workplaces, with one in 3 workers experiencing workplace sexual harassment in the last 5 years.
- Most sexual harassment in Australian workplaces is carried out by men.
- Half of incidents are repeated and of those, half are ongoing for more than one year.
- Reporting remains low with only 18% of sexual harassment incidents reported
- Only a third of Australian workers think their organisation is doing enough.”
For more information on the prevalence and nature of sexual harassment in Australian workplaces, see the Australian Human Rights Commission’s report, Time for respect: Fifth national survey on sexual harassment in Australian workplaces.
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