For a long time, the law on sexual harassment worked only after the event: someone was harassed, they complained, and an employer was held responsible if it had not taken reasonable steps. That has changed. The Sex Discrimination Act 1984 (Cth) now puts a positive duty on employers to prevent the conduct in the first place.
This page explains the duty for employees and for employers. If you are an employer and want help putting measures in place, see our pages for business.
What The Duty Says
Section 47C of the Sex Discrimination Act, inserted by the Respect at Work Act 2022 (Cth), requires an employer, or a person conducting a business or undertaking, to take reasonable and proportionate measures to eliminate, as far as possible:
- sex discrimination in employment;
- sexual harassment, and harassment on the ground of sex, in connection with work;
- subjecting someone to a workplace environment that is hostile on the ground of sex (s 28M); and
- victimisation of people who complain or assert their rights about any of those things.
The duty covers conduct by the employer itself, by its employees and workers, and by its agents. It also covers conduct by third parties, such as customers, clients and suppliers, towards the employer's employees and workers.
What "Reasonable And Proportionate" Means
The duty is not one-size-fits-all. In deciding whether an employer has complied, the Act takes into account (s 47C):
- the size, nature and circumstances of the business;
- its resources, financial and otherwise;
- how practicable the measures are, and what they cost; and
- any other relevant matter.
A large employer will be expected to do more than a small business. But every employer must do something, and "as far as possible" sets a high bar. Measures commonly include a clear policy that people actually read, training, a safe and confidential way to report, prompt and fair investigation of complaints, and a look at risks particular to the workplace (for example, work with customers late at night, or a culture that tolerates sexual jokes).
The duty sits alongside, and does not reduce, an employer's work health and safety duties (s 47C).
Hostile Workplaces And Harassment On The Ground Of Sex
The same reforms added two things that are now unlawful in their own right, and so within the duty:
- Harassment on the ground of sex (s 28AA): unwelcome conduct of a demeaning nature, because of a person's sex, where a reasonable person would have anticipated the possibility that they would be offended, humiliated or intimidated. It does not need to be sexual in nature. Demeaning comments about women's abilities can be an example.
- A hostile workplace environment (s 28M): conduct in a workplace that a reasonable person would have anticipated could make the environment offensive, intimidating or humiliating to people of a particular sex. It can be unlawful even if it was not aimed at anyone in particular. The seriousness of the conduct, whether it was repeated, and the role and authority of the person responsible are all relevant.
Who Enforces The Duty
The duty is enforced by the Australian Human Rights Commission, under Division 4A of Part II of the Australian Human Rights Commission Act 1986 (Cth). The Commission can:
- publish guidelines on how to comply (s 35A);
- inquire into an employer's compliance if it reasonably suspects the employer is not complying (s 35B);
- give a compliance notice setting out what the employer must do, and by when (s 35F), which the employer can ask to be reconsidered and can take to court for review (ss 35G, 35H);
- apply to court to enforce a compliance notice (s 35J); and
- accept an enforceable undertaking from the employer (s 35K).
The Commission can also inquire into systemic unlawful discrimination that affects a group of people or forms a pattern (ss 35L-35Q).
What The Duty Means For You As An Employee
The positive duty does not give you a separate claim of your own. You cannot sue your employer simply for breaching s 47C. But it matters to you in three ways:
- You can raise it. If your workplace has no policy, no training, or no safe way to report, you can point to the duty when you raise the problem internally.
- It shapes a harassment claim. If you were harassed by a co-worker, your employer is liable too unless it proves it took all reasonable steps to prevent it: s 106 of the Sex Discrimination Act, s 527E of the Fair Work Act, s 161 of the Equal Opportunity Act 1984 (WA) and s 51BS of the Industrial Relations Act 1979 (WA). Evidence that an employer ignored the positive duty can make that defence very hard to establish.
- The Commission can act. The Human Rights Commission can look into a workplace where there is a pattern of harassment, even if no individual complaint is taken to court.
If you have been sexually harassed, your own options and their time limits are on our Sexual Harassment page.
What The Duty Means For You As An Employer
- Assess the risks in your own workplace, including from customers and clients.
- Have a written policy that is short enough to be read, and make sure it is.
- Train managers to recognise and respond to harassment, and train everyone on what is expected.
- Give people more than one way to report, including one that does not go through their manager.
- Investigate complaints promptly and fairly, protect the person who complained from victimisation, and keep records.
- Review what you have done regularly, especially after a complaint.
Doing these things also puts you in the best position to show you took all reasonable steps if a claim is made.
How We Can Help
We advise employees who have been harassed at work and employers who want to meet the positive duty. For employees, we can explain which forum suits your situation and act for you. For employers, we can review your policies and complaint processes. Contact us for a free and confidential initial discussion.