Workplace sexual harassment is no longer an issue employers can afford to address only after a complaint is made.
Under the Sex Discrimination Act 1984 (Cth), all Australian employers now have a legal obligation to take reasonable and proportionate steps to eliminate workplace sexual harassment and related unlawful behaviour, as far as possible. This obligation is known as the Positive Duty.
The Positive Duty applies to every business, regardless of size, industry or workforce. It requires employers to take proactive action to prevent:
The Australian Human Rights Commission now has enforcement powers to investigate and take action against organisations that fail to meet these obligations.
The law has fundamentally changed.
Having a policy sitting in a drawer is no longer enough. Employers are expected to actively identify risks, educate workers, improve workplace culture, respond appropriately to concerns and continually review their approach to prevention.
The risks of failing to act can be significant:
Importantly, sexual harassment remains a widespread workplace issue. The Australian Human Rights Commission's latest national survey found that one in three Australian workers experienced workplace sexual harassment in the previous five years, with only 18% of incidents formally reported.
Many employers believe it is not happening in their workplace. The data suggests otherwise.
The Australian Human Rights Commission has developed seven standards that guide employers in meeting their Positive Duty obligations:
In practical terms, employers should be able to demonstrate that they have:
The key question is no longer whether you have a sexual harassment policy.
It's whether you can demonstrate that you are actively taking reasonable and proportionate steps to prevent unlawful conduct from occurring.
The Positive Duty places a strong emphasis on leadership accountability.
Boards, executives, business owners, HR teams and people leaders all have a role to play in creating safe, respectful and inclusive workplaces. The Australian Human Rights Commission expects senior leaders to understand their obligations, oversee risk management and ensure prevention initiatives are implemented and reviewed.
Positive Duty compliance is not a one-off project. It requires ongoing attention, regular training, workplace consultation and continuous improvement.
If you engage workers in Queensland, you may have additional obligations under Queensland work health and safety laws.
Many Queensland employers are required to have a documented prevention plan to manage the risks associated with workplace sexual harassment and sex or gender-based harassment. Failure to comply can result in significant penalties.
Understanding your obligations is one thing. Implementing them is another.
ABLA has developed practical resources to help employers confidently meet their Positive Duty obligations without having to start from scratch.
Learn directly from ABLA's workplace law specialists about:
Watch the webinars to understand exactly what your organisation needs to do.
Our Sexual Harassment Positive Duty Toolkit provides a practical, step-by-step framework to help employers implement a compliant prevention strategy.
The toolkit includes:
Built by workplace law experts, the toolkit helps organisations move from awareness to action and demonstrates the reasonable and proportionate measures expected under the Positive Duty.
View the Toolkit and start building a safer, more compliant workplace today.
Received a complaint or disclosure? Calling ABLA early ensures any investigation is handled efficiently, sensitively and lawfully. To discuss a sensitive matter in your workplace, get in touch via the contact form on this page. You'll also find further resources on this topic below.
