Positive duty: what employers must do to prevent sexual harassment at work

Written by Kate Raston

The positive duty is a legal obligation on Australian employers to take reasonable and proportionate measures to eliminate workplace sexual harassment, sex discrimination, sex-based harassment, hostile work environments and victimisation, as far as possible. It sits in section 47C of the Sex Discrimination Act 1984 (Cth), has applied since December 2022, and it flips the old model on its head: employers can no longer wait for a complaint and then respond. They have to prevent harm before it happens (Australian Human Rights Commission).

If you run a business in mining, construction, resources or another high-risk, male-dominated industry, this is not a HR housekeeping task. It is a legal duty, a work health and safety obligation, and a culture question, all at once. Here is what it means and what you actually need to do.

What does the positive duty actually require?

The positive duty requires employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate, as far as possible, five types of conduct: sex discrimination in a work context, sexual harassment in connection with work, sex-based harassment, conduct creating a workplace environment that is hostile on the ground of sex, and related victimisation (AHRC).

"Reasonable and proportionate" means every duty holder must act, but what is expected depends on the size and nature of the business and the resources available. A 2,000-person mining contractor will be held to a higher bar than a 12-person civil crew. Both have to do something.

Who enforces it, and what can they do?

The Australian Human Rights Commission has had power to enforce the positive duty since 12 December 2023. It can inquire into compliance, make findings of non-compliance, make recommendations, issue compliance notices enforceable by the federal courts, and enter into enforceable undertakings with duty holders (AHRC statement of intent). The Commission can start an inquiry if it reasonably suspects a business is not complying. It does not need a complaint first (AHRC Compliance and Enforcement Policy).

The Commission has also said it will focus compliance and enforcement activity where the risks and impacts of harm are greatest. For high-risk, male-dominated industries, read that as a signal.

How does this connect to work health and safety in WA?

The positive duty does not replace your WHS obligations. It sits alongside them. In Western Australia, the Work Health and Safety Act 2020 commenced in March 2022 and applies WHS duties equally to physical and mental (psychosocial) health and safety. WorkSafe WA's Workplace behaviour code of practice covers the prevention and management of harassment, including sexual harassment, and is meant to be read alongside the Psychosocial hazards in the workplace code of practice. WorkSafe WA has also consulted on a dedicated sexual and gender-based harassment code of practice, adapted from Safe Work Australia's national model code.

In practice, that means sexual harassment is a workplace hazard. It needs to be identified, assessed, controlled and reviewed like any other risk on site.

What must employers do to meet the positive duty? The seven standards

The AHRC's Guidelines for Complying with the Positive Duty set out seven standards the Commission expects every duty holder to meet, guided by four principles: be consultative, aim for gender equality, recognise intersectionality, and be person-centred and trauma-informed (AHRC). Here is what each one looks like on a site, in a depot or in a camp.

1. Leadership. Senior leaders understand their obligations, put prevention and response measures in writing, review them and role model respectful behaviour. In practice, executives and site managers can explain the duty, own a written prevention plan, and are seen backing it on the ground, not just in the annual report.

2. Culture. The AHRC expects a safe, respectful and inclusive culture that values gender equality, supports reporting and holds people accountable. That means banter, initiation rituals and "that's just how it is out here" are named and challenged, and accountability applies to your best operator too.

3. Knowledge. Employers need a clear policy, plus education on expected behaviour, unlawful conduct, and workers' rights and responsibilities. The training has to be something people can actually use: what crosses the line, how to step in safely, and how to respond to a disclosure. It belongs in induction, then gets refreshed.

4. Risk management. Unlawful conduct is both an equality risk and a health and safety risk, so it needs to be identified, assessed, controlled and reviewed. Harassment sits on the risk register, and rosters, remote work, camp accommodation, alcohol and isolated roles are assessed as risk factors.

5. Support. Support must be available to anyone who experiences or witnesses harm, whether or not they report it. Workers know their options, including ones that don't go through their supervisor.

6. Reporting and response. Workers need formal and informal ways to report, and responses that are consistent, timely and minimise harm and victimisation. On site, that looks like multiple ways to speak up, a trauma-informed response process, and consequences that don't depend on seniority.

7. Monitoring, evaluation and transparency. Employers collect data, use it to improve, and are open about reports and the actions taken. Track reports, survey culture, measure whether interventions shift behaviour, and tell your people what you found and what changed.

The standards are interconnected. A training session ticks part of Standard 3. On its own, it doesn't touch the other six.

Why high-risk, male-dominated industries need to pay closer attention

Sexual harassment is common across every Australian industry. The Australian Human Rights Commission's 2022 national survey of more than 10,000 people found one in three workers had experienced workplace sexual harassment in the previous five years, and only 18% of incidents were reported (AHRC, Time for Respect). Women (41%) were more likely than men (26%) to be harassed, and rates were higher again for LGBTQA+ workers (46%), First Nations workers (56%) and workers with disability (48%). Two in three people who were harassed reported negative mental health impacts (AHRC media release).

In mining, the picture is sharper. The WA Parliament's 2022 Enough is Enough inquiry heard that 74% of women in the mining industry had been sexually harassed in the previous five years, and described the problem as systemic. It made 79 findings and 24 recommendations (WA Parliament, Enough is Enough; Hall & Wilcox summary). One of its clearest messages was that companies had historically treated sexual harassment as a HR matter, when it should be managed as a work health and safety issue (AIHS via myosh).

The risk factors are well known to anyone who has worked on site: workforces where women and gender-diverse people are a small minority, remote and isolated locations, shared accommodation, long rosters, alcohol, steep power gradients between supervisors and workers, and cultures where speaking up can cost you your next swing. None of this means the people in these industries are the problem. It means the conditions need deliberate management. The positive duty asks employers to do exactly that.

Common mistakes employers make with the positive duty

Treating it as a training requirement. Training is one part of one standard. The AHRC expects action against all seven, and says there is no one-size-fits-all approach (AHRC). An annual e-learning module with a quiz at the end is unlikely to convince a regulator, or your workforce, that you have taken reasonable and proportionate measures.

Leaving it with HR. Sexual harassment is a psychosocial hazard. If it isn't on your risk register, in your site safety conversations and in your contractor management, you are managing it in the wrong place.

Writing a policy no one reads. A policy is necessary, but it is the floor. The test is whether a 19-year-old trades assistant on their first swing knows what crosses the line, who to talk to, and that they will be backed if they speak up.

Waiting for a complaint. With only 18% of incidents reported nationally (AHRC), a quiet complaints register is not evidence of a safe workplace. It may be evidence that people don't trust the process.

Blaming instead of building. Campaigns that cast a whole workforce as the problem tend to put people offside. Prevention works better when it calls everyone in: most workers want a safe site, and many will step in if they have the skills and the backing to do it.

How We Are Consulting helps employers meet the positive duty

We Are Consulting is a Perth-based workplace culture and psychosocial safety consultancy. We work with employers in mining, resources, construction and other high-risk, male-dominated industries across Western Australia to prevent sexual harassment and build respectful workplaces.

Our Respectful Workplace Transformation Framework maps directly to the seven standards:

  • Assess. We review your current policies, reporting pathways, risk controls and culture, and show you where you stand against the AHRC standards and your WHS obligations.

  • Educate. We deliver face-to-face workshops on sexual harassment prevention, bystander intervention, respectful communication and responding to disclosures. Every session is run by two facilitators, tailored to your sites and your people, and built on behaviour change evidence rather than compliance slides.

  • Review. We help you measure what has shifted, report back to your workforce, and refine your approach, so your prevention plan is a working document, not a binder on a shelf.

Our approach is conversational and trauma-informed. We don't lecture or blame. We call people in, because a respectful site is one everyone has a stake in.

Not sure where your organisation stands on the positive duty? Book a free consult call and we'll talk through where you're at and what reasonable and proportionate looks like for your business.

Frequently asked questions about the positive duty

When did the positive duty start?

The positive duty was introduced into the Sex Discrimination Act 1984 (Cth) in December 2022. The Australian Human Rights Commission's power to enforce it began on 12 December 2023 (AHRC).

Does the positive duty apply to small businesses?

Yes. It applies to all employers and PCBUs. What counts as reasonable and proportionate depends on the size and nature of the business and its resources, so a small business is expected to act, just not in the same way as a large one.

Is training enough to comply with the positive duty?

No. Training contributes to the Knowledge standard, but the AHRC expects action across all seven standards: leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency.

What happens if an employer doesn't comply?

The AHRC can inquire into compliance, make findings and recommendations, issue compliance notices enforceable through the federal courts, and enter into enforceable undertakings (AHRC). Separately, failing to manage sexual harassment as a psychosocial hazard can breach WHS laws.

Is sexual harassment a work health and safety issue in WA?

Yes. Under the Work Health and Safety Act 2020 (WA), employers must manage risks to psychological as well as physical health and safety, and WorkSafe WA's codes of practice cover harassment, including sexual harassment (WorkSafe WA).

Sources

Kate Raston
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