Resources to assist employers in meeting “positive duty” obligations

Late last year, the Government successfully negotiated passage of its Respect@Work legislation which enhanced an employer’s obligation to prevent sexual harassment and sex discrimination in the workplace. From 12 December 2023, the Australian Human Rights Commission (AHRC) will be empowered to investigate and enforce compliance with this identified “positive duty” and, to assist employers meeting their obligations, has made available a suite of resources.

The Commission identifies that the “positive duty” within the Sex Discrimination Act 1984 (Cth) obliges organisations and businesses to “eliminate” (as far as possible) the occurrence of “relevant unlawful conduct”, defined to include:

• 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.

An excerpt from the introduction of The Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) published by the AHRC further explains:

Previously, the law focused on providing a mechanism for people to make complaints when they experienced unlawful conduct under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act). The Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces report (Respect@Work Report) found that this legal framework was ineffective at preventing sexual harassment because it only required employers to demonstrate actions taken to try to prevent harmful behaviour after the harmful behaviour had already occurred.

Now, the Sex Discrimination Act requires ‘persons conducting a business or undertaking’ and ‘employers’ (organisations and businesses) to take proactive action to prevent discrimination and harm from occurring in the first place.

In addition to the ‘Guidelines’ document, AHRC has also made available a ‘Quick Guide’ (summary of the ‘Guidelines’), along with an Information Guide on the Positive Duty, described as a “companion” to the ‘Guidelines’ reference. Small business employers can utilise A Resource for Small Business on the Positive Duty, which “outlines the steps small businesses can take to satisfy their obligations and provides practical case studies to help small businesses understand the positive duty and take action”. Numerous fact sheets are also accessible, with additional tools and resources to be released as necessary.

All resources are available for free, from the AHRC webpage – The Positive Duty under the Sex Discrimination Act.

Additional resources

In March 2025, Workplace Relations Minister, Murray Watt, announced a new Federal Code of Practice (Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025), designed to provide practical guidance to employers to help protect workers against workplace sexual harassment. All Federal model Codes of Practice can be accessed on the Safe Work Australia website, under the ‘Resources and Publications’ section.