Positive Duty to Prevent Workplace Sexual Harassment in Australia

Table of Contents

1. The direct answer
2. What is the positive duty?
3. Why the law moved from reaction to prevention
4. Who owes the federal duty?
5. Which workers and working relationships are covered?
6. What conduct is covered?
7. Sex discrimination in a work context
8. Sexual harassment in connection with work
9. Sex-based harassment
10. Hostile workplace environments on the ground of sex
11. Related victimisation
12. What "eliminate, as far as possible" means
13. What "reasonable and proportionate measures" means
14. Factors affecting the required measures
15. Positive duty versus vicarious liability
16. Positive duty versus complaint handling
17. The four Guiding Principles
18. The seven Standards
19. Workplace drivers and systemic causes
20. Risk-factor table
21. Identifying risk before an incident
22. Prevention controls
23. Safe reporting channels and options
24. Responding to disclosures
25. Person-centred and trauma-informed response
26. Confidentiality and privacy
27. Procedural fairness
28. When an investigation is required
29. Findings, outcomes and systemic action
30. Governance, data and monitoring
31. AHRC compliance and enforcement
32. Fair Work overlap
33. Federal and Victorian overlap
34. Legal-framework table
35. Seven-Standards table
36. Prevention-controls table
37. Reporting and response framework
38. Small-business compliance
39. Common employer mistakes
40. Practical compliance action plan
41. Employer audit checklist
42. Worked examples
43. When urgent legal advice is required
44. Conclusion
45. Frequently Asked Questions

What is the positive duty?

The positive duty was inserted into the Sex Discrimination Act by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) and commenced on 12 December 2022, with the Australian Human Rights Commission's compliance and enforcement functions in respect of the duty commencing on 12 December 2023.

The duty requires employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, relevant unlawful conduct. The "relevant unlawful conduct" is defined in section 47C and covers five categories: sex discrimination in a work context; sexual harassment in connection with work; sex-based harassment in connection with work; subjecting another person to a workplace environment that is hostile on the ground of sex; and related acts of victimisation.

The duty is positive and preventive. It does not depend on a complaint being made, on an injury occurring or on the engagement of any other statutory process. It also does not displace the existing prohibitions on engaging in sex discrimination, sexual harassment, sex-based harassment, conduct creating a hostile workplace environment or victimisation — those prohibitions continue to apply concurrently and create separate individual liability.

Why the law moved from reaction to prevention

The 2020 Respect@Work National Inquiry Report by the Australian Human Rights Commission concluded that relying primarily on individual complaints had been ineffective in reducing the prevalence and harm of workplace sexual harassment. Recommendation 17 proposed a positive duty on employers to take reasonable measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible. The Australian Government accepted that recommendation and implemented it through the 2022 amending Act.

The legislative shift reflects concerns identified by the Respect@Work report: that a significant proportion of sexual harassment is not formally reported; that the individual complaints model places much of the burden on those who have been harmed; and that preventive measures addressing drivers of unsafe behaviour — culture, leadership, power, gender inequality, work design and accountability — may reduce harm more effectively than reactive processes alone.

Who owes the federal duty?

Section 47C applies to "persons" in defined categories including employers, persons conducting a business or undertaking, principals in relation to commission agents and contract workers, partnerships and the Commonwealth. In practice it captures incorporated and unincorporated employers, partnerships, sole traders engaging workers, not-for-profits, religious bodies where they act as employers, statutory bodies and the Commonwealth itself, subject to the precise statutory scope.

The duty applies regardless of business size. The measures required, however, are tailored to the organisation's size, nature, circumstances and resources. Small businesses are not exempt; they are assessed proportionately. A sole trader engaging a single employee owes the duty; so does a multinational with thousands of workers and a globally dispersed workforce.

Directors, officers and senior leaders should treat the duty as a governance issue. While the duty applies to the employer or business as a legal person, governance failures — failure to lead, to allocate resources, to require accountability or to test effectiveness — are ordinarily the matters the Commission will look to in assessing compliance.

Which workers and working relationships are covered?

The Sex Discrimination Act protects a wide range of people in work-related contexts, including employees, contractors, commission agents, partners, members of boards or committees and people seeking employment. "Worker" is broadly understood. Customers, clients, patients and other members of the public may also be protected in defined work-related interactions, and their conduct may engage employer responsibilities where it occurs in connection with work performed for the employer or business.

The duty extends beyond conduct on the employer's premises. Conduct in connection with work can include online interactions, work-related social events, work travel, employer-provided accommodation, client premises, conferences, work-related transport and other settings where there is a sufficient nexus to work. Employers should not confine compliance to the physical workplace.

What conduct is covered?

The positive duty applies to the five categories of "relevant unlawful conduct" in section 47C:

• sex discrimination in a work context;
• sexual harassment in connection with work;
• sex-based harassment in connection with work;
• subjecting another person to a workplace environment that is hostile on the ground of sex; and
• acts of victimisation that relate to complaints, evidence, action or refusals connected with one of the above matters.

Each category has its own statutory definition and case law. Compliance frameworks that address sexual harassment alone will not address the other categories. The following sections describe each category at a working level appropriate for employer planning rather than for individual legal advice.

Sex discrimination in a work context

Sex discrimination occurs where a person is treated less favourably because of their sex, or where a requirement disadvantages people of one sex without being reasonable in the circumstances. The Sex Discrimination Act prohibits both direct and indirect discrimination in work contexts including recruitment, terms and conditions, training, transfers, promotions and termination, subject to defined exceptions.

For positive-duty purposes, sex discrimination is a category of conduct the employer must take reasonable and proportionate measures to eliminate as far as possible. Preventive measures include reviewing recruitment, promotion, performance and remuneration systems for sex bias; auditing access to development opportunities; addressing role segregation; and ensuring that managers and decision-makers understand and apply the relevant standards.

Sexual harassment in connection with work

Sexual harassment is unwelcome conduct of a sexual nature where a reasonable person would have anticipated, in the circumstances, the possibility that the person harassed would be offended, humiliated or intimidated. Conduct of a sexual nature includes physical, verbal, visual and written conduct and can include behaviour online, by message, by image, by gesture or by display.

The conduct need not be intended to harass; the statutory test is objective on a reasonable-person basis. It need not be repeated to be unlawful; a single sufficiently serious act may suffice. It is not necessary for the conduct to take place at the employer's premises; "in connection with work" can include online, social, travel and client settings. Welcomeness is assessed from the perspective of the person to whom the conduct is directed.

Sex-based harassment

Sex-based harassment is unwelcome conduct of a demeaning nature, by reason of a person's sex, by reason of a characteristic that appertains generally to persons of that sex or by reason of a characteristic generally imputed to persons of that sex, where a reasonable person would have anticipated the possibility that the person would be offended, humiliated or intimidated. It differs from sexual harassment in that the conduct need not be of a sexual nature; it is conduct that is demeaning by reference to sex.

Examples may include sexist remarks, derogatory stereotypes, insulting comments about people of one sex, demeaning behaviour towards women in leadership, mocking commentary based on imputed characteristics or sustained verbal hostility based on sex. The category is often under-recognised in workplace compliance programs and warrants specific attention.

Hostile workplace environments on the ground of sex

The Act prohibits subjecting another person to a workplace environment that is hostile on the ground of sex. Unlike sexual or sex-based harassment, this provision focuses on the environment itself rather than on conduct directed at one individual. It can be engaged by cumulative tone, imagery, language and culture that a reasonable person would find offensive, intimidating or humiliating on the basis of their sex. A single individual need not be the target.

Examples may include sexually explicit imagery, jokes or content displayed in shared workplaces; team chats permeated by demeaning content about people of one sex; sustained banter or commentary that creates an atmosphere of hostility; or work environments where people of one sex are treated as less competent, valued or welcome. Preventing this category requires attention to culture, materials, communications, management standards and active enforcement, not just to one-off incidents.

Related victimisation

Victimisation is subjecting, or threatening to subject, another person to a detriment because they have made, or propose to make, a complaint or allegation, given evidence, taken action, or refused to do an act that would be unlawful. It also covers detriment imposed on people because of their connection with someone who has done one of those things.

After a sexual-harassment report, victimisation risks commonly include adverse changes to rosters, duties, hours or location; exclusion from meetings, opportunities or social events; performance management that commences or escalates without a genuine evidentiary basis; punitive references; and informal social or relational consequences. Employers must specifically plan for and monitor against victimisation, including post-decision and after the person has returned to work.

What "eliminate, as far as possible" means

The duty is to take reasonable and proportionate measures to "eliminate" relevant unlawful conduct "as far as possible". The duty is not absolute. It does not impose strict liability for every instance of unlawful conduct in connection with the employer's business. It does, however, require the employer to aim at elimination through preventive measures, not merely to reduce or manage risk to a tolerable level.

The Commission's guidance treats "as far as possible" as requiring measures that are reasonably available, implementable and effective in the circumstances. The standard is calibrated to what is achievable given the size, nature, circumstances and resources of the organisation, but it is more demanding than risk "management" framed in purely operational terms.

What "reasonable and proportionate measures" means

In assessing what measures are reasonable and proportionate, the legislation requires the Commission and a court to have regard to:

• the size of the person's business or operations;
• the nature and circumstances of the person's business or operations;
• the person's resources;
• the person's business or operational priorities;
• the practicability and the cost of the measures; and
• any other relevant matter.

"Practicability" is a familiar concept in workplace safety law and is treated similarly here. Cost is relevant but is not, on its own, decisive. The obligation is to take the measures that are reasonable and proportionate in the relevant circumstances, not the cheapest or most convenient. A small employer is not required to do what a major employer can do; a major employer cannot point to small-employer limitations.

The reasonableness inquiry is contextual and multifactorial. It looks at what the employer knew or ought to have known, the risk profile of the workplace, what measures were available, whether consultation occurred, how leadership engaged, what response systems were operating, and whether monitoring informed continuing improvement.

Factors affecting the required measures

In practice the required measures will reflect:

• the size and structure of the organisation, including any subsidiaries, contractors and shared workplaces;
• the industry, sector and nature of the work, including hospitality, health, education, emergency services, professional services, blue-collar and customer-facing settings each presenting distinct risks;
• workforce composition, including gender balance, language diversity, age profile, the proportion of casual or insecure workers, and the presence of young, migrant or junior workers;
• working arrangements, including hours, rosters, shift work, remote and hybrid work, lone work and travel;
• workplace settings, including client premises, customer-facing environments, work events, accommodation and online platforms;
• known prior incidents, complaints, regulator engagement and litigation; and
• the employer's resources, governance structure and operational priorities.

Positive duty versus vicarious liability

The positive duty is distinct from vicarious liability. Vicarious liability under section 106 of the Sex Discrimination Act makes a person liable for acts of its employees and agents in defined circumstances, with a statutory defence where the employer has taken all reasonable steps to prevent the conduct. Vicarious liability is reactive — it operates in respect of specific unlawful conduct.

The positive duty is forward-looking. It requires measures to be taken whether or not unlawful conduct has occurred. Compliance with the positive duty will often assist a vicarious-liability defence, but the two operate independently. An employer can be in breach of the positive duty without any individual having yet engaged in unlawful conduct, and can be vicariously liable for an act despite having a strong preventive framework, depending on the facts.

Positive duty versus complaint handling

Compliance with the positive duty is not equivalent to having a good complaint-handling system, although a good response framework is part of the duty. Prevention, complaint handling, investigation, disciplinary action and legal-claim defence are related but distinct functions. A workplace that responds well to individual complaints can still be in breach of the positive duty if it does not address drivers and systemic risk.

Conversely, a workplace with strong systemic prevention will still receive reports and must respond to them safely and fairly. The positive duty does not displace procedural fairness, support obligations, regulatory obligations or contractual requirements that apply to a specific response.

The four Guiding Principles

The Commission's Guidelines for Complying with the Positive Duty — issued under s 35A of the Australian Human Rights Commission Act 1986 (Cth) — apply four Guiding Principles to the seven Standards. The Guidelines are authoritative Commission guidance used by the Commission to assess compliance, but they are not legally binding and are not a mandatory one-size-fits-all checklist; the statutory obligation remains reasonable and proportionate measures to eliminate the relevant unlawful conduct as far as possible, and equivalent or higher-protection measures may satisfy it.

1. Consultation

Workers — including workers with lived experience, women, workers from intersectionally marginalised groups, contractors and others with insight into the work — should be consulted about risks, controls, reporting pathways and review. Consultation can help surface risks that managers cannot see from above and produces information that top-down assumption often misses.

2. Gender equality

Gender inequality is a primary driver of sexual harassment. Measures that address gender pay gaps, gendered work segregation, gendered leadership patterns and the gendered allocation of opportunities are part of prevention, not tangential to it. Equality work also improves the legitimacy of complaint and disciplinary systems.

3. Intersectionality

Risk and impact differ across overlapping attributes — sex, gender identity, sexual orientation, race, age, disability, migration status, religion and other characteristics. Generic measures often work less well for workers with intersecting attributes. Identification, consultation, support and response should explicitly consider intersectional risk.

4. Person-centred and trauma-informed practice

Engagement with people affected by relevant unlawful conduct should be person-centred and trauma-informed — listening without judgment, explaining options, respecting autonomy where possible, using trained personnel, providing support and preventing victimisation. A trauma-informed approach does not presume that an allegation is true and does not displace procedural fairness; it is a way of engaging.

The seven Standards

The Commission identifies seven Standards as an integrated compliance framework. They should be read and implemented together, with the four Guiding Principles applied to each.

Standard 1 — Leadership

Senior leaders are responsible for understanding their obligations, leading visibly, allocating resources and requiring accountability. Boards and executives should own the framework, not delegate it entirely to HR. Leaders are expected to model expected behaviours, engage with workers, and require their teams to do the same.

Standard 2 — Culture

Cultural work goes beyond statements. A safe, respectful and inclusive culture is built through consistent accountability (including for senior or high-performing staff), consultation, worker feedback, recognition of respectful behaviour and credible consequences for unsafe behaviour. Tolerating conduct because the person is valuable damages culture more than any policy can repair.

Standard 3 — Knowledge

Workers should understand their rights, the conduct covered, the reporting pathways, the support available and their own responsibilities. Knowledge is built through accessible policies, role-specific induction, tailored education and accessible communications. A single generic annual e-learning module is rarely adequate on its own.

Standard 4 — Risk management

Employers should identify the drivers and risk factors of relevant unlawful conduct in their workplace and put in place proportionate controls. Risk management should be informed by consultation, workforce data, prior incidents, industry insights and operational knowledge. Waiting for complaints is not risk management.

Standard 5 — Support

Workers affected by relevant unlawful conduct should have access to appropriate support — internal and external, including trained contact persons, employee-assistance support, specialist external services and links to professional support where needed. An EAP alone is not a substitute for prevention but is one element of support.

Standard 6 — Reporting and response

Reporting pathways should be safe, accessible and trusted, with multiple options including external options. The response framework should be timely, proportionate, person-centred and procedurally fair, with clear interim measures, support, investigation options and outcome communication where appropriate. A single reporting line, especially through a manager who may be the source of risk, is inadequate.

Standard 7 — Monitoring, evaluation and transparency

Employers should monitor whether their measures are working — using data, audits, governance reports, consultation and review — and provide appropriate transparency to workers and stakeholders without breaching privacy. Counting complaints alone is not monitoring; the absence of complaints may be evidence of mistrust rather than safety.

Workplace drivers and systemic causes

Sexual harassment, sex-based harassment and related conduct are driven by identifiable workplace conditions. Common drivers include power imbalances, gender inequality, male-dominated leadership and workforce settings, hierarchical structures, casual or insecure work, the presence of young or junior workers, isolated or remote work, customer interaction, alcohol at work functions, work travel and employer-provided accommodation, online communications, prior failures to respond, tolerance of sexist conduct, inadequate supervision and high-status or high-revenue individuals whose conduct is treated as untouchable.

The presence of a driver does not prove unlawful conduct has occurred. It indicates a need for targeted preventive measures. Conversely, the absence of a known driver does not relieve an employer of the duty.

Risk-factor table

Identifying risk before an incident

Identification methods include consultation with workers and their representatives; review of organisational data (turnover, exit themes, leave, workers-compensation, harassment reports and grievance patterns); analysis of workforce composition and work settings; review of complaints and investigations; review of customer or contractor incidents; survey tools; observation and walk-throughs; and consultation with sector or regulator material. Identification should reflect actual work, not the work as imagined from senior level. Records should be kept of the methods used and the matters identified.

Prevention controls

Controls operate at multiple levels: leadership and governance; work and environment design; systems and procedures; behavioural standards; education and capability; support; and monitoring. No single layer is sufficient. Lower-order controls (such as policies and training) should not be used to avoid higher-order measures (such as redesigning work, allocating supervision or restructuring problem teams) where the higher-order measure is reasonable and proportionate.

Safe reporting channels and options

Reporting pathways should be safe, accessible, trusted and visible. Multiple channels should be available, including:

• direct line management (with an alternative where the manager is implicated or distrusted);
• a designated internal contact, HR or integrity function;
• an external reporting line or whistleblowing service;
• an external regulator or commission (such as the AHRC, the Victorian Equal Opportunity and Human Rights Commission, the Fair Work Commission or WorkSafe Victoria as relevant);
• anonymous reporting (with a clear policy on what can and cannot be done with anonymous information);
• third-party support services for advice prior to reporting.

Bystander reports, witness reports, customer complaints, exit-interview themes and rumours requiring cautious verification should each be considered as potential sources of information about risk. A report does not require a victim to have come forward.

Responding to disclosures

A safe and fair response to a disclosure typically involves: immediate safety considerations; explanation of options (without coercion towards any single option); arrangement of appropriate support; preservation of relevant evidence; consideration of interim measures; selection of an appropriate pathway (informal, formal investigation, work-design change, other); notification of any affected parties where required; investigation where appropriate; findings where required; decisions on individual and systemic action; appropriate communication of outcomes; monitoring for victimisation; and review of preventive controls. Not every disclosure follows the same path.

Person-centred and trauma-informed response

A person-centred and trauma-informed response includes listening without judgment, not demanding an immediate formal complaint, explaining options and their limits, allowing reasonable control and choice where possible, avoiding unnecessary repetition of the account, using trained personnel, considering cultural and accessibility needs, providing support, communicating expected timeframes, preventing victimisation and recognising the possible effects of trauma on disclosure and memory.

It does not mean assuming the allegation is proven, abandoning procedural fairness, denying the respondent an opportunity to answer, promising a particular outcome, suppressing relevant evidence or allowing immediate safety risks to remain unmanaged.

Confidentiality and privacy

Information should be limited to those with a legitimate need to know. Complete secrecy cannot always be promised — investigators and decision-makers may need access; regulators or courts may compel disclosure; privacy and health-record laws apply; outcome communication may need to be limited. Records should be stored securely. Confidentiality directions must not unlawfully prevent a person from obtaining advice, support or exercising legal rights, including under whistleblower laws or the Sex Discrimination Act itself.

Procedural fairness

Where allegations may lead to findings affecting a respondent's employment or reputation, procedural fairness applies. The respondent should be informed of the substance of the allegations, given a reasonable opportunity to respond, allowed a support person, and afforded an impartial decision-maker. Procedural fairness is not inconsistent with a person-centred response to the complainant. The two obligations must be implemented together. Our guide to procedural fairness in workplace investigations covers the framework in detail.

When an investigation is required

Not every report requires a formal investigation. Decisions about whether and how to investigate depend on the seriousness of the allegation, the wishes of the complainant, safety risk, the evidentiary picture, the existence of external proceedings and the available alternatives. Some matters can appropriately be addressed without a formal investigation; some matters may require formal investigation depending on applicable duties, facts and fairness. Our guide to workplace investigations in Victoria and the related guide to common mistakes in workplace investigations set out the framework.

Findings, outcomes and systemic action

Outcomes should be proportionate to the conduct substantiated, having regard to procedural fairness, the contractual and award framework, prior history and any statutory tests for action. Substantiated sexual harassment may, depending on the facts, constitute serious misconduct and justify disciplinary action including summary dismissal — but not every substantiated incident warrants dismissal, and a zero-tolerance statement is not a substitute for lawful decision-making. Our guide to serious misconduct and termination explains the framework. Where dismissal is contemplated, the unfair-dismissal and general-protections risks discussed in our guide to unfair dismissal in Australia should be considered. Whatever the individual outcome, the employer should also consider what systemic controls — work design, supervision, training, culture work — are warranted.

Governance, data and monitoring

Governance arrangements should give the board or equivalent body, and the senior executive, visibility of material risks, controls and outcomes without identifying individuals inappropriately. A practical governance dashboard may include measures such as:

• worker knowledge of reporting options and confidence in reporting;
• time taken to acknowledge reports;
• time taken to complete responses;
• themes, locations and business units with elevated risk;
• repeat allegations and patterns;
• staff turnover and exit themes;
• use of support services in appropriately aggregated form;
• completion and effectiveness of manager training;
• implementation of corrective controls;
• victimisation concerns identified and addressed;
• contractor and third-party incidents;
• board or executive review frequency.

Warnings: do not publish information that identifies individuals; do not rely only on complaint numbers; do not treat a fall in reporting as evidence of improved culture without testing why; and do not use confidential support data improperly.

AHRC compliance and enforcement

The Australian Human Rights Commission has compliance and enforcement functions in respect of the positive duty. The Commission may inquire into compliance, including in response to risk indicators rather than individual complaints. Its functions include information gathering, capacity building, voluntary compliance approaches, accepting enforceable undertakings, issuing compliance notices, and, in defined circumstances, applying to the Federal Court for orders requiring compliance.

Compliance notices and enforceable undertakings are substantive tools. They may require specified actions, reporting and time-bound improvements. Court enforcement remains available where compliance is not achieved. Employers should not assume that initial engagement will always be voluntary, particularly where serious or systemic failures are apparent. Specialist legal advice should be obtained before responding to formal Commission engagement.

Fair Work overlap

The Fair Work Act 2009 (Cth) prohibits workplace sexual harassment and provides processes through the Fair Work Commission. The Commission can make stop-sexual-harassment orders and, for conduct on or after 6 March 2023, deal with sexual-harassment disputes including (subject to the statutory requirements) conciliation, certificates and, in defined circumstances, arbitration by consent or court proceedings. General-protections provisions also apply to adverse action taken because a worker has exercised, or proposes to exercise, a workplace right, including the right to make a sexual-harassment complaint.

Employers should obtain advice promptly after receiving any external Fair Work Commission correspondence or application, particularly given the procedural timing requirements and the interaction between Fair Work, AHRC and state equal-opportunity processes.

Federal and Victorian overlap

Victorian employers also owe duties under the Equal Opportunity Act 2010 (Vic), which imposes a state positive duty on persons with duties under the Act to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation as far as possible. The state duty operates concurrently with the federal duty.

In addition, the Occupational Health and Safety Act 2004 (Vic) and the Occupational Health and Safety (Psychological Health) Regulations 2025 (Vic) impose duties to identify and control psychosocial hazards so far as is reasonably practicable. Current Victorian guidance treats sexual harassment as a psychosocial hazard. Our employer guide to psychosocial hazards in Victorian workplaces explains that framework in detail.

The federal, state equal-opportunity and OHS regimes operate concurrently. One process may engage several legal regimes — for example, a single incident may trigger AHRC positive-duty considerations, a Fair Work application, a Victorian Equal Opportunity Act complaint, an OHS notification and a workers-compensation claim. Satisfying one test does not automatically satisfy every other duty. Prevention, complaint response, investigation, injury management and legal defence are related but distinct functions.

Legal-framework table

The tests, remedies and procedures under each regime differ. The table is a navigation aid, not a statement that the duties are equivalent.

Seven-Standards table

The practical-evidence column lists examples of evidence the Commission may consider. The examples are not prescribed statutory documents.

Prevention-controls table

Reporting and response framework

Not every disclosure follows the same process. The table is a planning tool, not a fixed sequence.

Small-business compliance

The duty applies irrespective of business size. The required measures are calibrated to the organisation's size, nature, circumstances and resources. Practical measures for small employers include:

• owner or director accountability for the duty;
• a clear behaviour standard understood by all workers;
• direct consultation with workers about risks and controls;
• a simple, documented risk review;
• accessible internal and external reporting options;
• identifying an alternative contact where the owner is implicated;
• practical induction and discussion-based training;
• controls for customers, work travel, social events and lone work;
• external HR, legal or investigation support where in-house capacity is limited;
• periodic review and documented follow-up.

A downloaded policy is not, by itself, compliance. A small business that has implemented and consulted on practical, role-appropriate measures will usually be in a stronger position than a large organisation with extensive documentation that nobody reads.

Common employer mistakes

• waiting for a formal complaint before acting;
• relying on a policy that workers do not understand;
• generic annual training with no risk analysis;
• treating complaint numbers as the only metric;
• allowing senior or high-performing staff to avoid accountability;
• using only one reporting channel;
• requiring reports to go through the direct manager;
• promising complete confidentiality;
• moving or disadvantaging the complainant by default;
• taking no action because the person does not want an investigation;
• treating an anonymous report as irrelevant;
• investigating the individual allegation but not the systemic risk;
• conflating support with proof;
• conflating a trauma-informed response with assumed guilt;
• failing to protect respondents or witnesses from unfair treatment;
• inconsistent disciplinary outcomes;
• ignoring customer or contractor conduct;
• failing to review work functions, travel or online environments;
• overlooking victimisation after a report;
• failing to monitor whether controls work;
• inaccurate or inflammatory internal communications;
• changing records after the event;
• failing to obtain advice before regulator or Commission engagement.

Practical compliance action plan

1. Assign accountable senior ownership for the duty.
2. Review the federal and applicable state duties as currently in force.
3. Consult workers and relevant representatives about risks and controls.
4. Map work settings, working relationships and risk factors.
5. Assess leadership, culture and gender-equality risks.
6. Review policies, codes and contractual arrangements for currency, accessibility and consistency.
7. Create accessible internal and external reporting pathways and communicate them to all workers.
8. Train leaders, managers and workers according to role, not by generic annual module.
9. Implement source-based preventive controls (work and environment design, supervision, behavioural standards).
10. Provide appropriate support options, internal and external, and identify trained contact persons.
11. Establish fair and person-centred response protocols and interim-measure decision frameworks.
12. Monitor data, patterns and worker confidence and review at planned intervals.
13. Report material risks and actions to senior governance.
14. Review effectiveness after reports, organisational change or emerging risk.
15. Address contractors, clients, customers and shared workplaces specifically.
16. Obtain specialist advice for serious, complex or external matters.

Employer audit checklist

• Is senior leadership ownership documented and visible?
• Does the board or executive receive substantive reporting?
• Has consultation taken place with workers and representatives?
• Have gender-equality and intersectional risks been addressed?
• Has a workplace risk assessment been conducted and reviewed?
• Is the policy current, accessible and understood?
• Is the code of conduct current and applied consistently?
• Are recruitment and induction processes aligned with the duty?
• Are managers trained and assessed for capability in this area?
• Has role-appropriate worker education been delivered?
• Are bystander skills addressed in education and culture work?
• Are contractor obligations documented and enforced?
• Are client and customer risks identified and controlled?
• Are work functions and alcohol arrangements actively managed?
• Are travel and accommodation arrangements considered?
• Is online conduct expressly addressed?
• Are multiple reporting channels in place?
• Is anonymous reporting available with a clear protocol?
• Are external reporting options communicated?
• Are support arrangements in place internally and externally?
• Is a documented response protocol available?
• Are independent investigators identifiable when required?
• Are confidentiality and privacy obligations addressed?
• Is victimisation monitored proactively after reports?
• Is meaningful data collected and analysed?
• Is a review schedule in place and followed?
• Is corrective action tracked through to completion?
• Is the organisation ready for regulator engagement?

The checklist is a working tool, not a guarantee of compliance.

Worked examples

The following examples are illustrative only. They are not decided cases or guaranteed outcomes.

• Senior revenue-producing employee. A senior employee's harassing conduct has been tolerated because of their commercial contribution. A compliant response should consider culture, accountability and consistent enforcement.
• Team group chat. Sexually explicit messages circulate in a team chat. The conduct can constitute sexual or sex-based harassment and may help create a hostile environment on the ground of sex. Measures may include manager intervention, platform standards and proportionate consequences.
• Harassment by a client. A customer harasses a worker. The duty extends to client and customer conduct in connection with work. Controls include codes of conduct, escalation, refusal of service where appropriate and worker support.
• Work function with alcohol. A work event involves unmonitored alcohol service. Prevention includes service limits, planned end times, designated leads and clear behavioural expectations communicated in advance.
• Young casual worker. A young casual is reluctant to report a supervisor. The employer should consider providing multiple reporting channels, an alternative contact and explicit protection against shift reduction or termination.
• Migrant worker. A migrant worker is concerned about visa or job consequences. Multilingual information, visa-aware support and trusted external referrals improve the safety of reporting.
• Remote worker. A remote worker is harassed through messaging. Online conduct standards, manager visibility, platform controls and a clear response pathway are needed.
• Anonymous pattern report. An anonymous report identifies a recurring pattern. The employer cannot investigate the individual matter to a fact-finding standard, but can act on systemic risk and consult workers in the relevant area.
• Support without investigation. A complainant seeks support but does not want a formal investigation. The employer can still consider safety, support, interim measures and systemic controls without pressuring the person into a formal process.
• Investigation without systemic change. An employer investigates one complaint, takes action against the individual but does not review work design or culture. That approach may leave systemic risks unaddressed and may not satisfy the positive duty, depending on the circumstances.
• Small business with implicated owner. The owner is the alleged respondent. Possible measures may include a credible alternative contact, an external pathway and, where appropriate, an independent investigator.
• Shared travel accommodation. Work travel involves shared accommodation. Single-occupancy arrangements, transport home and emergency contacts reduce risk.
• Manager normalising sexist jokes. A manager treats sexist jokes as harmless banter. Manager capability work and consistent consequences are needed.
• Procedural fairness for respondent. A respondent has been informed of a complaint and supported through the response. Procedural fairness is preserved while the complainant is also supported.
• Possible victimisation. After a report, the complainant's hours are reduced. The employer should consider whether the change is genuinely independent of the report or amounts to victimisation, taking appropriate steps depending on the facts and any applicable duties.

When urgent legal advice is required

• a regulator (AHRC, Fair Work Commission, WorkSafe, police) has made contact;
• a serious allegation has been made or a serious incident has occurred;
• significant disciplinary action or dismissal is contemplated;
• a stop-sexual-harassment order or sexual-harassment dispute application has been received;
• contractor, labour-hire or shared-workplace arrangements complicate duty allocation;
• insurance, criminal-law or child-safety issues arise;
• the matter involves cross-border or multi-jurisdictional elements; or
• the employer is uncertain how the duty applies to a specific situation.

Timely legal advice can help preserve options. Once a decision is communicated, a notice is issued or a statement is given, options may narrow.

Conclusion

The positive duty is now central to the legal framework for workplace sexual harassment, sex discrimination, sex-based harassment, hostile workplace environments on the ground of sex and related victimisation in Australia. It is preventive, ongoing and assessed against the organisation's circumstances. It is not satisfied by a policy, an annual e-learning module or an EAP. It requires leadership, culture, knowledge, risk management, support, reporting and response and monitoring to operate together, informed by consultation, gender equality, intersectionality and a person-centred and trauma-informed approach.

Employers and businesses that integrate the duty into how they operate — and keep testing whether the measures are working in practice — are better placed to identify and manage risk than those relying solely on reactive complaint handling. Our employment law team for employers can advise on the federal positive duty, the Victorian framework, response and investigation decisions, regulator engagement and the interaction with Fair Work, OHS and contractual obligations. Julian McIntyre reviews this guide and advises Victorian and Australian employers in this area.