What is the positive duty?
Busineses and organisations have a legal obligation to take steps to prevent sexual harassment or sex-based harassment from happening. Learn more about sexual and sex-based workplace harassment.
It is not enough just to respond if you are made aware of it happening. You must take steps to prevent it from happening in the first place. This is called a positive duty.
What is the positive duty?
How to meet your positive duty
The Australian Human Rights Commission has put together some principles and standards to help you meet your positive duty to prevent sexual and sex-based harassment. Download the AHRC fact sheet: Steps to meet the positive duty (PDF).
We have summarised them below. You can also apply them to help you prevent other types of unacceptable workplace behaviours.
Employees who don’t think their employer is doing enough to prevent workplace sexual or sex-based harassment can make a report to the Australian Human Rights Commission or your local Workplace Health and Safety (WHS) regulator.
4 principles to guide your decisions
There is no ‘one-size-fits-all’ approach when it comes to eliminating sexual and sex-based harassment. What works in one organisation or business will be different from what works in another.
These guiding principles can help you decide what action to take.
- Talk to your workers — Ask your workers about what they need for a safe and respectful workplace.
- Aim for gender equality — Sexual and sex-based harassment is less likely to happen when people have equal rights, rewards, opportunities and resources regardless of gender.
- Acknowledge intersectionality — Do your workers have different intersecting identities that may compound or affect their experience of discrimination and harassment?
- Be person-centred and trauma informed — Support individual choice, safety and dignity, and avoid causing harm.
A set of standards to help you comply
Leadership
Senior leaders need to understand their obligations under the Sex Discrimination Act and have up to date knowledge about relevant unlawful conduct.
Senior leaders are responsible for ensuring that appropriate measures for preventing and responding to relevant unlawful conduct are developed, recorded in writing, communicated to workers and implemented. Senior leaders need to regularly review the effectiveness of these measures and update workers.
Senior leaders should be visible in their commitment to safe, respectful and inclusive workplaces that value diversity and gender equality. They should set clear expectations and role model respectful behaviour.
Culture
Organisations and businesses should create a safe, respectful and inclusive culture that empowers workers to report any sexual and sex-based harassment and reduce the harm that might occur in the workplace.
Knowledge
Organisations and businesses should:
- develop, communicate and implement a workplace policy about being respectful in the workplace to prevent sexual and sex-based harassment
- support workers to engage in safe, respectful and inclusive behaviour through education and information about the policy.
Risk management
Organisations and businesses should apply a risk-based approach that recognises that sexual and sex-based harassment are a risk to equality and a risk to health and safety.
A risk-based approach includes:
- regularly identifying and assessing risks
- implementing effective control measures
- reviewing control measures for effectiveness
- adjusting control measures where necessary.
Support
Organisations and businesses should have clear information and support for workers who experience or witness sexual and sex-based harassment.
Reporting and response
Reporting — Organisations and businesses should have clear options for reporting and responding to sexual and sex-based harassment. Communicate these options regularly to workers and others who might be impacted.
Responses to reports — Organisations and businesses should be consistent and act quickly when responding to reports of sexual and sex-based harassment. This can help minimise harm to the person or people involved. Consequences for harassment should be consistent and may depend on the situation.
Some behaviours, like sexual assault, are crimes and can be reported to the police.
Workplace injuries and incidents are also dealt with by work health and safety laws.
Monitoring, evaluation and transparency
Organisations and businesses should keep consistent records and collect data. This can help with assessing and improving workplace culture. Data can also help with developing new measures for preventing and responding to reports of sexual and sex-based harassment.
Organisations and businesses should be transparent about reported behaviours that might concern the safety of their workers, and take action to address and prevent the behaviours from happening again.
Taking 'reasonable and proportionate measures'
The law requires businesses and organisations to take ‘reasonable and proportionate measures’ to eliminate sexual and sex-based harassment.
What is ‘reasonable and proportionate’ may be different for each workplace, depending on how big the organisation or business is, the nature of the work they do, and the resources available to them.
This means that measures that a large, established, well-resourced organisation might be expected to take may be different from what a small business might be reasonably expected to do.
Keep learning:
More in this section:
Creating a safe workplace
Safe workplaces keep the arts thriving for everyone. Workplace safety is also the law.
Work health and safety roles and duties
Find out what you need to know to meet your legal obligations and create a safe environment for workers, contractors, volunteers and patrons.
WHS consultation: Talking about safety
Work health and safety consultation means talking and listening to workers about health and safety issues.
Managing hazards and risks
Identifying hazards and taking proactive steps to manage risks creates safer work environments, prevents injuries and helps workplaces meet their legal obligations. It is crucial for every creative workplace.
Worker safety training
All workers need workplace safety training – whether they are new to the job or highly experienced.
Safety reporting, monitoring and record keeping
Understanding how to report, monitor and record safety issues helps prevent accidents, meet legal obligations and support everyone in the workplace.
Emergency safety planning
Follow the steps on this page to help you plan for an emergency. Having a clear, well-communicated emergency plan ensures the safety of workers, audiences, and other visitors, and helps workplaces comply with work health and safety (WHS) laws.
Workers compensation insurance
Workers compensation insurance covers workers and organisations financially if a worker is injured or ill because of work.
Getting help with work health and safety
Check with the WHS regulator in your state or territory for requirements that are specific to your workplace. WHS laws are generally consistent across Australia, but they can sometimes vary depending on where you are.
