Workplace Relations
Positive Duty: New Proactive Obligations for Employers
Since December 2023, employers have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment, and victimisation as far as possible. This is a fundamental shift from reactive complaint-handling to proactive prevention.
What the Law Says
The Sex Discrimination Act 1984 (as amended by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022) imposes a positive duty on employers under Section 47C. The Australian Human Rights Commission (AHRC) can investigate compliance, conduct inquiries, and issue compliance notices — even without a complaint being made.
The AHRC has published guidelines identifying seven standards employers should meet, including leadership, culture, knowledge, risk management, support, reporting, and monitoring.
What Employers Must Do
Conduct a risk assessment
Assess your workplace for factors that increase the risk of sexual harassment and discrimination, such as power imbalances, isolation, alcohol, and workplace culture.
Develop or update policies
Ensure you have clear, comprehensive policies covering sexual harassment, discrimination, and victimisation that reflect the positive duty requirements.
Train all staff
Provide regular training that goes beyond legal definitions to address bystander intervention, reporting procedures, and organisational values.
Establish reporting mechanisms
Create multiple pathways for reporting including anonymous options, and ensure reporters are protected from victimisation.
Leadership commitment
Senior leaders must visibly champion a safe, respectful workplace. This includes modelling behaviour and responding to issues.
Monitor and evaluate
Regularly review the effectiveness of your measures using data on complaints, surveys, and workplace culture indicators.
Common Mistakes and How to Avoid Them
Mistake: Treating it as a tick-box exercise
Fix: The positive duty requires genuine, ongoing effort, not a one-off policy update. The AHRC looks for meaningful action and continuous improvement.
Mistake: Only acting after complaints
Fix: The whole point of the positive duty is proactive prevention. Waiting for complaints means you are already failing the duty.
Mistake: Not addressing power imbalances
Fix: Power imbalances are a key risk factor. Ensure there are checks on management authority and safe reporting pathways for employees at all levels.
Mistake: Ignoring bystander culture
Fix: Empower bystanders to speak up and intervene safely. A culture where misconduct is witnessed but not reported is a compliance failure.
Penalties and Consequences
The AHRC can investigate employers without a complaint and issue compliance notices requiring specific actions. Failure to comply with a compliance notice can result in court proceedings and orders. In addition, failure to meet the positive duty may weaken your defence in individual discrimination and harassment claims.
When to Get Professional Help
Jordan Firme Business Consultants helps employers meet positive duty obligations through risk assessments, policy development, training programs, and ongoing compliance monitoring.
Frequently Asked Questions
The positive duty requires employers to take reasonable and proportionate measures to eliminate, as far as possible, discrimination, sexual harassment, sex-based harassment, hostile workplace environments, and victimisation. It is a proactive obligation, not just a reactive one.
The positive duty commenced on 12 December 2023. The AHRC gained the power to investigate and enforce compliance from this date.
Yes. The AHRC has the power to conduct inquiries into systemic issues and investigate individual employers compliance with the positive duty, even without a specific complaint.
The seven standards are: leadership, culture, knowledge, risk management, support, reporting and response, and monitoring evaluation and transparency. Employers should assess their compliance against all seven.
No. It covers discrimination, sexual harassment, sex-based harassment, conduct creating a hostile work environment on the ground of sex, and victimisation. It applies to all workplaces regardless of size or industry.
Need Help Meeting the Positive Duty?
Our HR consultants can assess your compliance, develop prevention strategies, and help you build a respectful workplace.
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