Australian businesses must comply with 7 new positive duty standards
Are you familiar with the concept of positive duty? It’s more than just a legal requirement. It’s a fundamental shift in how Australian businesses approach workplace conduct. Enshrined in the Sex Discrimination Act since December 2023, positive duty mandates that all organisations and businesses must actively combat unlawful behaviour within their premises. This obligation is often referred to as the Respect at Work positive duty, reflecting its origins in the broader Respect@Work reforms.
But what does this mean for you as an employer or employee? In this article, we’ll delve into the new positive duty legislation, exploring its implications and the proactive measures businesses must take to foster safer and more inclusive workplaces to prevent sexual harassment in Australian workplaces before it starts.
What is positive duty?
Positive duty is a new legal requirement in the Australian Sex Discrimination Act. Sometimes called the positive duty Sex Discrimination Act obligation, it states that all organisations and businesses in Australia have a legal duty to take ‘reasonable and proportionate measures’ to eliminate and prevent unlawful conduct in their workplaces. This legislation became mandatory in December 2023.
Not Sure If You're Meeting Your Positive Duty Obligations?
An overview of the new positive duty legislation
The positive duty requires all Australian employers to proactively take measures to eliminate sexual harassment and other unlawful behaviour in the workplace. This means more than just reacting to complaints; it means stopping bad behaviour before it starts. This shift brings added compliance and complexity nationwide. Regardless of complaints, you can be held accountable under the Sex Discrimination Act. It’s no longer enough to wait for problems; businesses must be seen to create safe, respectful workplaces for all.
The law doesn’t need someone to complain for a business to be responsible anymore. This means businesses can’t wait for complaints to act. Instead, you have to work to stop problems before they happen. This change means a big shift from dealing with problems after they’ve already occurred to preventing them in the first place.
What conduct does the positive duty cover?
The positive duty requires you to take reasonable and proportionate measures to eliminate the following in your workplace:
- workplace sexual harassment
- sex-based harassment
- sex discrimination
- hostile workplace environments based on protected attributes
- victimisation
A short history of the Respect@Work legislation
The positive duty didn’t appear overnight. It followed a national inquiry into sexual harassment in Australian workplaces, which found that existing complaint-based protections weren’t stopping systemic unlawful discrimination from occurring in the first place. That inquiry’s findings led to a series of reforms collectively known as Respect@Work legislation. The reforms were first introduced to Parliament as the Respect at Work Bill, before culminating in the Human Rights Legislation Amendment Act that introduced the positive duty into the Sex Discrimination Act 1984. Because of this, the changes are sometimes referred to informally as the Respect at Work Act, though this isn’t its official title.
Around the same time, changes were also made under the Fair Work Act. The ‘Secure Jobs, Better Pay’ reforms introduced a new prohibition on sexual harassment connected to work, and gave the Fair Work Commission the power to deal with disputes where a person alleges they were sexually harassed at work. Together, these amendments mean workers now have more than one pathway to raise concerns about unwelcome conduct, whether through the Australian Human Rights Commission, federal courts, or the Fair Work Commission.
It’s also worth noting that a positive duty isn’t a brand new concept in Australia. Victoria has required employers to take proactive steps to prevent discrimination and harassment under the Victorian Equal Opportunity Act for some time. The federal positive duty brings the rest of the country into closer alignment with that existing approach, giving workers around Australia more consistent protection regardless of which state or territory they work in.
What is the aim of positive duty?
The aim of the positive duty is to prevent unlawful conduct, rather than reacting to it after it’s occurred.
This is because preventative action that addresses relevant unlawful conduct at a systemic level is more effective at creating safe, respectful and inclusive workplaces.
The Human Rights Commission believes businesses play a pivotal role in setting the benchmark for best practice in preventing unlawful conduct and fostering a culture of respect and inclusivity.
If you can prioritise the implementation of the positive duty, you show your commitment to creating a workplace that is not only legally compliant but also genuinely safe and supportive for all employees.
You create a workspace where everyone, regardless of their gender, race, sexual orientation, disability status, or age, has the opportunity to thrive. This will then have a knock-on effect on the rest of society, supporting broader gender equality across Australian workplaces.
Who will monitor whether a business has been practising positive duty?
The Australian Human Rights Commission is responsible for ensuring compliance with the positive duty outlined in the Sex Discrimination Act. The Commission holds the authority to initiate inquiries if it suspects an organisation or business isn’t meeting the positive duty, in order to assess compliance and, where needed, direct compliance through a compliance notice.
It’s worth noting that the Commission can start an inquiry without getting permission from the organisation or business involved. These conduct inquiries can look into the alleged conduct that occurred and, where needed, ask for information, documents, and witness statements as part of its investigation.
What does the positive duty mean for Australian businesses?
The latest government legislation now mandates businesses of all sizes to take a stand against workplace sexual harassment. This applies to every organisation and business in Australia, including:
- sole traders
- self-employed individuals
- small businesses
- medium businesses
- large businesses
- government entities
Under the Sex Discrimination Act, both those conducting a business and employers are obligated to fulfil the positive duty.
What does this mean for your company? Essentially, if a complaint is lodged and triggers an inquiry by the Australian Human Rights Commission, and you fail to demonstrate that you’ve taken reasonable and proportionate measures to eliminate sexual harassment and other unlawful conduct, you and your company could be held liable. Moreover, in severe cases, victims may pursue legal action, holding you accountable.
It’s important to note that organisations can also be held vicariously liable for the actions of their employees. This means that even if the organisation didn’t commit the unlawful behaviour, it could still be responsible for the actions of its employees during their employment unless it can prove it took preventive measures against sexual harassment.
What are the positive duty requirements of Australian business owners?
As a business owner, you need to address 7 standards:
- Leadership
- Culture
- Knowledge
- Risk Management
- Support
- Reporting & Responding
- Measuring & Monitoring
Your business may already be taking some of these actions, for example as part of your work health and safety obligations. A clear, well-communicated respect at work policy is one of the simplest ways to demonstrate these standards are being met, and to give workers confidence in the reporting pathways available to them.
To learn more about the 7 Standards of Positive Duty.
What happens if you don’t comply with the positive duty?
If you don’t address the positive duty, you are failing to comply with the Sex Discrimination Act. This could result in significant fines and other financial penalties. Moreover, it could really tarnish your business’s reputation, affecting its value, insurance premiums, and attractiveness to potential employees.
Wood v Kendall is the perfect example of a worst-case scenario: a small business found liable for over $125,000 after a director sexually harassed a young trainee, with the court finding the business had no policies, training, or reporting procedures in place at all.
Another critical example of the financial and reputational risks is the Mad Mex Case Study, highlighting the high cost of failing to meet the new standards. In some matters, non-compliance has also been resolved through enforceable undertakings, an alternative to court action where a business commits to specific remedial steps. However, outcomes like this shouldn’t be relied on as a substitute for proactive compliance
How can Australian businesses plan to avoid neglecting positive duty?
Given that the positive duty under the Sex Discrimination Act is a new legal obligation, organisations and businesses should prepare to allocate additional resources, both financial and otherwise, for their initial response. This will enable you to establish or modify existing structures and processes to ensure they are effective. Over time, the resources required may decrease as you establish the suitable systems, processes, and a culture of compliance.
If you need help implementing the 7 standards of positive duty set by the Human Rights Commission into your business, book a free consultation with us. Our specialist team is here to help you put actions into place now, before an issue arises in your workplace.
Positive Duty & Respect at Work Legislation – FAQs
What does “persons conducting a business or undertaking” mean under the positive duty?
Persons conducting a business or undertaking, often shortened to PCBUs, is a term used in work health and safety legislation to describe anyone who runs a business, regardless of its legal structure. The positive duty uses the same broad definition, meaning the obligation applies whether you operate as a sole trader, a partnership, or a large corporation. If you employ or engage workers in any capacity, you’re likely to have existing duties under this definition already, even if you haven’t previously connected them to sexual harassment prevention.
How does the positive duty relate to existing safety legislation?
The positive duty mirrors the logic already familiar to most businesses through work health and safety legislation. Just as employers must proactively manage physical risks in the workplace, they must now proactively manage the risk of sexual harassment and related unlawful conduct. If your business already has strong safety systems in place, you have a useful foundation to build from, though the specific actions required to meet the positive duty will still need to be developed separately.
What happens if the alleged conduct occurred before December 2023?
The positive duty itself only became mandatory in December 2023, so it applies to conduct going forward from that date. However, this doesn’t mean earlier conduct is unaddressed. Sexual harassment and sex discrimination were already unlawful under the Sex Discrimination Act before this date, and complaints about conduct that occurred earlier may still be dealt with under the existing complaints-based framework. If you’re dealing with a situation involving conduct from before this date, it’s worth seeking tailored advice on which framework applies.
How can a business start to achieve compliance with the positive duty?
There’s no single checklist that guarantees compliance, since what’s reasonable and proportionate will differ depending on your business’s size, resources and risk profile. That said, most businesses achieve compliance by working through the seven standards progressively, starting with a genuine risk assessment to understand where their workplace is most exposed, then building leadership commitment, training, and reporting pathways around those findings. Reviewing your compliance regularly, rather than treating it as a one-off project, is central to demonstrating an ongoing effort to address workplace sexual harassment.
Do confidentiality clauses and non-disclosure agreements still have a place in harassment matters?
This is an evolving area, and businesses should be cautious about relying on confidentiality clauses or non-disclosure agreements as a default response to harassment complaints. There has been growing scrutiny, both in law reform discussions and in individual cases, around whether these agreements can discourage reporting or leave systemic issues unaddressed. Because this is a nuanced area, it’s best treated as a matter for specific legal advice rather than a general rule, particularly where a settlement is being negotiated.
What enforcement action can be taken against a business that doesn’t meet its obligations?
If the Australian Human Rights Commission finds that a business hasn’t met the positive duty, it can issue a compliance notice setting out the specific action required. If a business doesn’t comply with that notice, the matter can escalate to enforcement action through the Federal Court or Federal Circuit and Family Court. Separately, individuals who believe they’ve experienced unlawful conduct may also bring their own claims, which can result in outcomes for the business regardless of any Commission inquiry.
Will there be further changes to the positive duty or Respect@Work legislation?
Workplace harassment and discrimination law has been an active area of reform in recent years, and further changes are possible as the positive duty framework matures and its practical impact is reviewed. Businesses shouldn’t treat their current compliance approach as a fixed, one-time setup. Keeping an eye on updates from the Australian Human Rights Commission and Fair Work Commission is a sensible part of maintaining a person’s compliance over time.
Where can businesses get legal insights or support to meet these obligations?
Because the positive duty is still a relatively new area of law, many businesses are working through it for the first time. Legal insights from qualified employment lawyers are valuable for complex or high-risk situations, particularly where alleged conduct has already occurred, or a hostile work environment is suspected. For the practical, day-to-day work of building compliance, systems, training, and culture change, Positive Duty is here to assist employers in translating the legislation into a workable framework for their business.
