Understanding Your Positive Duty

A step by step guide to meeting the seven standards for preventing sexual harassment and discrimination in the workplace.

Recent amendments to the Sex Discrimination Act 1984 (Cth) have lead to a shift in focus, introducing a 'positive duty' on employers to prevent and eliminate sexual harassment, sex discrimination, and related unlawful conduct in the workplace. This means that it's not enough to just address incidents after they occur, there is now a requirement to be proactively preventing them. This is a critical step towards fostering safer, more respectful work environments. But how can workplaces actually go about meeting these obligations? And who is responsible for complying with this positive duty?

Understanding Who Must Comply with Positive Duty Obligations

In Australia, the positive duty to prevent workplace harassment rests with employers and Persons Conducting a Business or Undertaking (PCBUs). This includes:

• Sole traders and the self-employed

• Small, medium, and large businesses

• Government entities, including Australian Public Service (APS) agencies

• Companies, partnerships, and franchises

• Not-for-profit organisations (NFPs)

• Other entities that employ staff

  
  

In short, pretty much every organisation or business has to comply. So how do organisations and PCBUs go about complying with the positive duty requirements?  

What are the seven standards to satisfy positive duty?

The Seven Standards have been laid out by the Australian Human Rights Commission (AHRC) as expectations of what organisations and PCBUs need to do in order to satisfy their Positive Duty under the Sex Discrimination Act.

1. Leadership: includes a commitment to respectful workplaces that value diversity and gender equality

2. Culture: can include your values, beliefs, attitudes, goals and work practices

3. Knowledge: includes training, education and policies

4. Risk Management: includes taking a risk-based approach to prevent unlawful conduct and to responding if it does occur

5. Support: can be provided in informal and/or formal ways, and should be available to all workers

6. Reporting & Responding: formal or informal, internal or external avenues available for people to raise issues and concerns in an organisation / PCBU

7. Monitoring, Evaluation & Transparency: monitoring refers to what data you collect and how, evaluation determines how that data is used and transparency decides what data should be shared and with whom

The 7 Standards (AHRC, 2023)

Meeting Your Positive Duty: 5 Essential Steps for Employers

Navigating the complexities of Positive Duty under the Sex Discrimination Act can feel overwhelming. To cut through the noise, here are five essential steps your organisation should take to proactively create a safe, respectful, and inclusive workplace, as well as how they align which the Seven Standards:

STEP 1: Assess Risks and Gather Insights to Better Understand Your Workplace Landscape

The first thing to do before implementing changes is to gain a clear understanding of your current environment. This involves actively identifying potential risks and gathering honest feedback. 

Being consultative and thinking about your people are guiding principals that the Australian Human Rights Commission lays out for satisfying your positive duty. So what does this actually look like in practice? 

Here are some actions you could undertake: 

1. Conduct thorough risk assessments to pinpoint areas where unlawful discrimination and harassment may be more likely to occur. Depending on the size of your organisation, you may be able to analyse available data such as past complaints, incident reports, and exit interview feedback.

2. Implement confidential employee surveys or focus groups to gain qualitative insights into workplace culture, perceptions of safety, and experiences of discrimination or harassment.

3. Review existing policies, procedures, and practices to identify any potential biases or gaps in protection.

Relevant Standards:

Knowledge, Risk Management, Monitoring, Evaluation & Transparency

STEP 2:  Demonstrate Leadership Commitment and Establish Accountability

We’re big believers that when it comes to preventing discrimination and harassment, effective change comes from the top down. You simply can’t create a safe, supportive workplace without buy-in from leaders in a workplace. A truly effective approach to the Positive Duty starts at the top. 

Visible commitment from leadership, especially senior executives, is crucial in setting the tone and driving meaningful change, especially when it’s well documented that sexual harassment is ofter under reported. 

So what might this commitment from leadership and accountability actually look like? 

First and foremost, leaders need to know their obligations under the Sex Discrimination Act and have up-to-date knowledge about workplace sexual harassment, sex discrimination and other unlawful behaviours. Workplaces should be seeking training to make sure everyone in leadership has a thorough understanding. 

It’s not enough to just know what the relevant laws and policies are either. Leaders need to know the causes and impacts of unlawful behaviour; how to identify and respond to it; and where to go for advice, information and support. For effective prevention, we need a deep understanding of the conditions that enable certain behaviours to occur. That’s why when we train leaders at Let's Talk About X, we examine the drivers sexual harassment in the workplace before we look at measures for prevention. 

It’s also important that roles and responsibilities are explicitly defined, as well as accountability measures for implementing and overseeing changes.

Implementation shouldn’t be a tick box exercise.

Leaders should lead by example, upholding behaviour that keeps everyone in the workplace safe. The need to be committed to preventing unlawful discrimination and harassment.

Some actionable strategies for showing this commitment include: 

• Investing in ongoing training for leadership in fostering a safe, consensual workplace culture 

• Issue a clear and formal statement outlining the organisation's unwavering commitment to preventing unlawful discrimination and harassment

• Integrate Positive Duty objectives into organisational strategic plans, performance management frameworks, and resource allocation decisions

  
  

Relevant Standards: 

Leadership, Culture, Education, Monitoring, Evaluation & Transparency

STEP 3: Empower Your Workforce Through Education and Awareness

Once leadership is on board and has an up-to-date understanding, the next step is to make sure everyone is has a better understanding of what sexual harassment and sex-based descrimination might look like in today’s workplace. 

A well-informed workforce is better equipped to understand their rights and responsibilities, recognise inappropriate behavior, and contribute to a positive culture.

Some actions you can take include: 

1. Clearly communicate the organisation's code of conduct or workplace behaviour policy, ensuring it is easily accessible and regularly reinforced through various internal channels

2. Implement comprehensive and engaging training programs for all employees. Training should be ongoing, specific to your workplace context and explore:

   
   

   • What sexual harassment and unlawful discrimination can look like

   • Reporting procedures and where to get help

   • Strategies for bystander intervention

   • Strategies for building a consent culture and keeping everyone safer and more comfortable

     
     

Clear learning objectives should be defined for any training, with evaluation conducted to ensure that these are met. 

It’s also important that managers and supervisors understand their obligations under the Positive Duty, including how to address concerns, support their teams, and model respectful behaviour.

Relevant Standards: 

Culture, Knowledge, Monitoring, Evaluation & Transparency

Step 4: Implement Clear and Accessible Reporting and Support Mechanisms

Establishing trust in reporting processes and providing adequate support is vital for addressing incidents and fostering a culture of accountability. A national survey by the Australian Human Rights Commission in 2022 found that fewer than 1 in 5 people who experienced sexual harassement in the workplace made a formal report of complaint. Clearly there is a lot of work to be done in this area. 

Some actionable steps that you can take to foster trust include: 

• Developing and communicating clear, confidential, and accessible pathways for employees to report concerns or incidents of unlawful discrimination and harassment. Offer multiple reporting options to cater to different preferences and comfort levels

• Establishing  transparent and fair procedures for handling complaints, ensuring timely investigation, due process, and appropriate outcomes

• Providing access to appropriate support services for individuals who have experienced unlawful conduct, such as internal Employee Assistance Programs (EAPs) or referrals to external specialist organisations

Relevant Standards: 

Support, Reporting & Responding, Monitoring, Evaluation & Transparency

Step 5: Monitor, Evaluate, and Continuously Improve Your Strategies

Meeting the Positive Duty is not a static achievement but an ongoing commitment to learning, adapting, and striving for a better, safer, more consensual workplace. This means that over time, you will

• define key metrics to track the effectiveness of your Positive Duty initiatives and monitor workplace culture (e.g., number and nature of reports, employee survey data, training participation rates).

• regularly collect and analyse data to identify trends, evaluate the impact of implemented measures, and pinpoint areas requiring further attention or improvement.

• seek regular feedback from employees on their experiences and suggestions for enhancing workplace culture and preventing unlawful conduct.

• periodically review and update your policies, procedures, and training programs in light of monitoring data, employee feedback, legal developments, and best practices.

Workplaces also need to be transparent about the nature and extent of reported behaviours and the steps taken to address these.

Relevant Standards: 

Monitoring, Evaluation & Transparency, Risk Management, Leadership 

Guiding Principles for meeting Positive Duty Obligations

This step by step guide is underpinned by the guiding principles laid out by the AHRC. These evidence-based principles are developed based on what’s known to be effective when it comes to protecting and promoting human rights. 

The four guiding principles are: 

1. Be consultative This means actively seeking input from employees when developing and implementing measures to prevent sexual harassment.

   • Example: Conducting surveys or focus groups to understand employees' experiences and concerns related to workplace culture and safety.

2. Aim to achieve gender equality This principle emphasises that measures should address the underlying power imbalances and systemic issues that contribute to sexual harassment, and promote equality in the workplace.

   • Example: Implementing policies and practices that ensure equal representation and opportunities for all genders in leadership positions and for all staff.

3. Think about your people and acknowledge intersectionality

   This means recognising that individuals may experience harassment differently based on the combination of various aspects of their identity, such as gender, race, disability, or sexual orientation.

   • Example: Tailoring training and support resources to address the specific needs and experiences of diverse groups of employees.

4. Be person centered and trauma-informed 

   This principle highlights the importance of prioritising the needs, safety, and well-being of individuals who have experienced sexual harassment, and avoiding actions that could cause further harm.

   • Example: Providing access to support services, offering flexible reporting options, and ensuring that investigations are conducted in a sensitive and respectful manner.

It’s not just about meeting legal obligations, the Positive Duty is about fostering safer workplaces for all.

Fundamentally, creating a safe and respectful environment is essential for the wellbeing of all employees. Harassment and discrimination can cause significant psychological harm, including anxiety, depression, and post-traumatic stress, impacting individuals' ability to thrive both professionally and personally.

Beyond the impact on individuals, such behaviours can also have serious consequences for the workplace as a whole. A culture of harassment and discrimination can lead to decreased productivity, increased absenteeism, and higher turnover rates, ultimately damaging the organisation's reputation and financial performance. By taking proactive steps to prevent harmful behaviours, employers can foster a positive and inclusive environment, where all employees feel valued, respected, and able to contribute their best work.

By focusing on these five key steps, your organisation can move beyond simply complying with the law and actively cultivate a workplace where everyone feels safe, respected, and empowered to contribute their best.

Let's Talk About X is a certified social enterprise. Our training and resources help workplaces create safer, more respectful spaces for people of all genders and sexualities.