Sexual Harassment and Positive Duty
To help employers and businesses understand and meet their obligations under the positive duty laws, Total HRM is hosting a must-attend workshop: Sexual Harassment – What employers must do to meet their positive duty
What you’ll learn:
– What the positive duty means for your business
– Why training and prevention, not just response, are now critical
– The six steps you should be taking to meet your obligations
– Practical tools to support compliance
Whether you’re a small business owner or a senior HR leader, this session will provide clear, practical advice to help your organisation meet its legal and ethical responsibilities.
The New Era of Employer Responsibility in Preventing Sexual Harassment
Australia’s legal landscape has shifted. Employers are now bound by a statutory obligation to proactively prevent sexual harassment, sex discrimination, hostile environments and victimisation in the workplace. Known as the positive duty, this mandate extends under the Federal Sex Discrimination Act 1984 (Cth), following amendments that came into full force between December 2022 and December 2023.
What Is the Positive Duty — And Why It Matters Now?
Employers and businesses must take reasonable and proportionate measures to eliminate unlawful conduct before incidents occur.
This is a proactive obligation, not merely a reactive one. Waiting for issues to surface and then handling them will not render you compliant.
Since 12 December 2023, the Australian Human Rights Commission (AHRC) gained the power to investigate and enforce compliance. Employers who fail to meet the positive duty could face potential vicarious liability, civil penalties and reputational damage.
Growing Risks for Employers — Legal and Reputational
In New South Wales, effective from 1 July 2025, the Industrial Relations Commission can issue binding stop orders and impose penalties up to approximately $94,000 for businesses or $19,000 per individual.
In Victoria, WorkSafe has made it clear that sexual harassment is treated as an occupational health and safety issue – not merely a personnel matter. Under the OHS Act, employers must take proactive measures to ensure a workplace free of risks to mental or physical health. Fines imposed in high-profile cases include:
– A painting company was fined $90,000 after a worker quit due to two months of continuous harassment, deemed a failure to manage workplace safety risks.
– In a landmark prosecution, a boss and two related businesses were fined a cumulative $290,000 for failing to maintain a safe workplace, including inaction on sexual harassment complaints and failure to provide adequate reporting channels.
The AHRC continues advocating for reforms such as limiting the use of NDAs, extending support for vulnerable workers and increasing penalties for breaches of the positive duty — particularly when employers have failed to prevent harassment before incidents occur.
Seven Standards Underpinning Compliance
AHRC’s Guidelines for Complying with the positive duty outline seven interlocking standards employers must implement:
1. Leadership – Senior leaders must model respectful, lawful conduct.
2. Culture – Build inclusive, safe environments that do not tolerate harassment.
3. Knowledge – Train all staff, especially leaders, to understand lawful conduct and the positive duty.
4. Risk Management – Identify and assess risks, including structural or cultural drivers of harassment.
5. Support – Offer trauma‑informed responses and support to complainants and witnesses.
6. Reporting & Response – Develop clear, safe avenues for disclosure and effective investigation procedures.
7. Monitoring, Evaluation & Transparency – Regularly review practices and share outcomes where appropriate.
What this means for employers
At Total HRM’s workshop, you will learn the six practical steps to minimise risk to place you in a stronger position to defend claims of vicarious liability and demonstrate compliance. These include how to:
1. Develop and communicate a robust sexual harassment policy.
2. Train workforce and leadership on definitions, reporting processes and organisational expectations.
3. Conduct risk assessments: review culture, structure, potential hotspots (e.g. social events, supervision gaps).
4. Institute formal prevention plans – especially in jurisdictions like VIC and NSW, where stronger obligations apply.
5. Enable safe reporting: ensure mechanisms are trauma-informed, accessible and promote trust.
6. Continuously monitor operations, evaluate training effectiveness and transparently share progress with stakeholders.
Conclusion
Australia’s legal framework now places a clear onus on employers: don’t wait for complaints. You must proactively implement preventive measures based on risk, leadership engagement, staff knowledge and culture-building. That’s the essence of the positive duty – and it’s now enforceable.
If you’re unsure where to begin, Total HRM can support you with policy development, risk assessments, workforce training and practical toolkits to ensure your business is fully compliant and creating a safe, respectful workplace for all.
To register your interest in Total HRM’s ‘Beyond Compliance: Preventing Sexual Harassment in the Workplace’ workshop, or send us an email at: lucie@totalhrm.com.au