This section discusses how organisations can take a positive duties approach to addressing 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 is a standard set out in legislation that requires organisations to be proactive in addressing discrimination.
All organisations and businesses in Australia that have obligations under the Sex Discrimination Act 1984 must satisfy the positive duty to prevent workplace sex discrimination, sexual harassment and other unlawful behaviour from happening – rather than responding after it has occurred.
Some jurisdictions such as Victoria also have a positive duty. For example, the Equal Opportunity Act (Vic) establishes minimum standards that all organisations must comply with. These standards require actions to be taken to both prevent and respond to discrimination, sexual harassment and victimisation.
Reasonable and proportionate measures
The positive duty established under the Sex Discrimination Act and the Equal Opportunity Act (Vic) requires organisations and businesses to take “reasonable and proportionate measures” to prevent unlawful behaviour.
This means that the expectations for organisations and businesses will vary depending on factors such as the:
- size of the business or organisation
- resources and budget available
- nature of the business and its operational priorities
- cost of the measures and whether they can actually be put into place effectively.1
In both cases, there are minimum standards set out with which all organisations and businesses must comply.
See AHRC’s ‘Steps to meet the positive duty’ fact sheet or VEOHRC’s guidance on positive duty for more information.
Sex Discrimination Act - Respect@Work reforms
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.
The 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 new positive duty was introduced in December 2022 and 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
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 (AHRC) highlights in its Time for respect: Fifth national survey on sexual harassment in Australian workplaces:
“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… Only a third of Australian workers think their organisation is doing enough.”
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