Positive duty on employers to prevent sexual harassment

In the five years since the global #MeToo movement, we have witnessed significant shifts in community and corporate attitudes towards sexual harassment. Organisational cultures of cover up and silence are no longer accepted practice.

Despite these shifts, sexual harassment continues to occur at unacceptable rates in Australian workplaces. In 2020, the Australian Human Rights Commission Respect@Work Report found that the current legal and regulatory framework to combat sexual harassment was ineffective, with rates of sexual harassment in the workplace increasing and low levels of reporting. The Report made 55 recommendations to provide government, workplaces and supporting organisations a roadmap for better practice in addressing workplace sexual harassment.

In November 2022, the cornerstone recommendation of the Respect@Work Report – imposing a positive duty on employers and persons conducting a business or undertaking (‘PCBU’) to eliminate discriminatory conduct under the Sex Discrimination Act 1984 (Cth) (‘Sex Discrimination Act’) – was finally implemented. The positive duty will shift the burden away from individuals making complaints, instead putting the onus on employers to prioritise early intervention and prevention. Sex Discrimination Commissioner, Kate Jenkins, considers ‘the positive duty and the employers being focused on this will be the single most revolutionary change that will impact sexual harassment’.

The focus of this article is on key elements of the positive duty and practical guidance to assist employers in meeting their obligations.