The positive duty to prevent workplace sexual harassment

The duty covers conduct by the employer, its employees or workers, and its agents. It also covers conduct by third parties, such as customers or clients, towards your employees or workers, including sexual harassment and hostile workplace environments where they work.

It is a preventive duty: you must act before anything happens, rather than only responding to complaints. The duty does not limit your separate duties under WHS laws (s 47C(7)).

A small business is not expected to do what a large employer would, but every duty holder must take some proactive steps. The Commission’s Guidelines for Complying with the Positive Duty (August 2023) set out seven standards it uses to assess compliance:

1. Leadership
2. Culture
3. Knowledge
4. Risk management
5. Support
6. Reporting and response
7. Monitoring, evaluation and transparency

These powers are in Division 4A of Part II of the Australian Human Rights Commission Act 1986 (ss 35A–35K). Before acting on a finding of non-compliance, the Commission must give the business notice and an opportunity to make submissions. A business given a compliance notice can ask for it to be reconsidered within 21 days, or apply to court for review.

• The prohibition protects workers, people seeking to become workers, and people conducting a business, and is a civil remedy provision.
• A person can apply to the Fair Work Commission for a stop sexual harassment order, for the FWC to otherwise deal with the dispute, or both (s 527F).
• The FWC may dismiss an application made more than 24 months after the alleged harassment (s 527G).
• The FWC deals with disputes by mediation or conciliation and, if the parties agree, by arbitration. The current regime has applied since 6 March 2023.

The "all reasonable steps" defence in s 527E means the same prevention work you do for the positive duty also protects the business in Fair Work claims. Sexual harassment can also be serious misconduct; see ending employment lawfully before acting on a finding.

Safe Work Australia lists harassment, including sexual and gender-based harassment, among common psychosocial hazards. In Victoria, the employer’s general duty in the OHS Act 2004 covers psychological health, because "health" is defined to include it. Workplace sexual assault can also trigger incident notification duties in some jurisdictions, such as the ACT; see notifiable incidents.

Consult workers when identifying these risks and deciding on controls; that consultation is itself a WHS duty. Our psychosocial risk self-assessment can help structure it.

1. Brief leaders and directors on the duty and their role; officers also have WHS due diligence duties.
2. Identify risk factors with workers: customer-facing work, power imbalances, isolated work, alcohol at work events, and past complaints.
3. Write or update a policy covering sexual harassment, sex-based harassment, hostile environments and victimisation.
4. Train all staff, with extra training for managers who receive reports.
5. Offer several ways to report, including anonymous options, and protect people who report from victimisation.
6. Record reports, actions and outcomes, and review trends at least yearly.
7. Address third-party risks, such as customers or clients, with clear rules and the authority to refuse service.