The findings of the recent Respect@Work: Sexual Harassment National Inquiry Report (2020) delivered by the then Sex Discrimination Commissioner Kate Jenkins show that, despite shifts in societal attitudes, increased education, and worldwide calls to action such as the Me Too movement, sexual harassment is still incredibly prevalent in workplaces across Australia.

This provides a particular challenge to employers, who now have a positive duty to take reasonable and proportionate measures to eliminate unlawful sexual discrimination (the Positive Duty). Since 12 December 2023, the Australian Human Rights Commission has had the power to enforce compliance with this positive duty.

Achieving compliance will require a proactive, creative and curious approach from leaders to ensure that plans to prevent sexual discrimination are tailor-made to the risk profile of their organisation. Employers willing to undertake significant consultation with its workforce on these issues will be best placed to deliver positive change.

What conduct is covered?

Employers now have a positive duty to eliminate, as far as possible, the following unlawful conduct from occurring:

  • sexual harassment in connection with work;
  • sex-based harassment in connection with work;
  • discrimination on the grounds of sex in a work context;
  • conduct creating a workplace environment that is hostile on the grounds of sex; and
  • related acts of victimisation.

Whose conduct is covered?

The positive duty requires an employer to take steps to eliminate unlawful conduct being engaged by:

  • themselves;
  • their employees, workers and agents; and
  • in some circumstances, by third parties (such as customers, clients, patients and members of the public) towards employees and workers.

What is required of employers?

Employers will need to be able to show that their organisations have taken reasonable steps to meet the positive duty. Importantly, there is no one-size-fits-all template that will demonstrate compliance. High-risk workplaces (e.g., those with a greater proportion of male employees to female employees (noting that sexual harassment is typically, although not always, a gendered issue), employees working in remote locations, or hierarchical workplaces) will require a different approach to lower risk workplaces.

The Australian Human Rights Commission (AHRC) has set out seven standards that it expects employers to meet in order to satisfy the positive duty. It has also issued four guiding principles to use when implementing the seven standards.