Two years in: Are you complying with your Positive Duty requirements?

In the last two years, employers have been under scrutiny to uphold their positive duty requirements to reduce sexual harassment.

But have these duties been truly met?

In December 2022, under the Sex Discrimination Act 1984 (Cth), positive duty obligations were first introduced to eliminate, as far as reasonably possible, sexual harassment in the workplace.

The positive duty requirements was seen as a new proactive prevention method to prevent the following unlawful behaviours from taking place. These included:

• discrimination on the grounds of sex in a work context
• sexual harassment in connection with work
• sex-based harassment in connection with work
• conduct creating a workplace environment that is hostile on the grounds of sex
• related acts of victimisation.

These obligations represent both a moral imperative and an imposed legal obligation on employers and businesses. The primary goal is fostering a safety-focused work culture that protects all employees.

But two years in, how far have businesses come?

Our CEO of Workplace Advisory and Compliance, Kirsten Hartmann, says that it has been rather slow-paced. And to this day, the whole concept of positive duty may be underestimated in its impact.

To achieve genuine compliance, Kirsten believes leadership must undergo a fundamental shift in both mindset and practice to genuinely integrate the core principles of positive duty.

The current state of compliance with positive duty

Recent data from our workplace investigations paints a concerning picture of where we stand today.

Our Workplace Investigations Insights Report from September 2024 noted that workplace bullying and sexual harassment complaints continues to indicate serious ongoing problems across many organisations. A striking 72% of complaints stemmed from inappropriate workplace behaviours, with sexual harassment allegations comprising 20% of all cases.

The above data is a significant indication of what’s missing in positive duty responsibilities.

Most businesses are not approaching these requirements with sufficient urgency, leading to difficult situations where employees who feel harassed cannot perform effectively due to mental health impacts.

72% of workplace complaints stemmed from inappropriate behaviours, with sexual harassment allegations accounting for 20% of all cases.

The business case for proactive prevention

The positive duty framework, when implemented properly, serves dual purposes. While preventing harassment is fundamentally an employer’s duty to ensure safety, it’s also a critical commercial decision according to our expert. Anything that happens to an employee in the workplace becomes a leadership responsibility and can prove costly and damaging to the employer brand and bottom line.

Organisations that truly embrace their positive duty obligations understand that proactive prevention is far more cost-effective than reactive investigations and remediation efforts.

Employer’s role in meeting legal obligations

Compliance sits firmly on every leadership’s agenda, including the board, and meeting positive duty requirements is another critical part of compliance that cannot be overlooked.

Kate Jenkins, Former Federal Sex Discrimination Commissioner, recently emphasised that organisations should view positive duty as an opportunity for culture change rather than a compliance exercise.

Kirsten agrees with this perspective while highlighting serious legal consequences of non-compliance with positive duty. As the Australian Human Rights Commission has the power to investigate and enforce compliance with positive duty through inquiries and compliance notices, it is important for employers to be proactive to avoid personal liabilities.

For employers looking to develop a workplace sexual harassment prevention model, here are six minimum standards, as per the legislation, that they must comply with:

1. Knowledge
   Understanding your obligations and the risks in your workplace
2. Prevention Plan
   Developing comprehensive strategies to prevent harassment
3. Organisational Capacity
   Ensuring adequate resources and expertise
4. Risk Management
   Identifying and mitigating workplace risks
5. Reporting and Response
   Establishing clear complaint mechanisms
6. Monitoring and Evaluation
   Regular assessment of prevention effectiveness

However, meeting these six standards alone isn’t sufficient. The real challenge lies in the cultural transformation required to make positive duty truly effective.

You can’t have positive duty without dealing with the cultural aspect

Through our extensive experience investigating highly sensitive matters, we’ve identified a common pattern: poor workplace cultures prevent employees from having transparent conversations about misconduct. This environment leaves employees afraid to speak up against inappropriate behaviours.

Our investigations insights report revealed that while some senior leaders are taking more action than before, nearly 41% of alleged behaviour occurred by a senior leader in a position of power. The cases also included scenarios where executives tended to tolerate problematic behaviours.

The data reinforces the critical need for employers to be attuned to the power imbalances that exist within workplaces, which significantly affect team dynamics and overall workplace culture.

According to Kirsten, the concept of ‘culture’ runs much deeper than currently perceived. It’s about building the culture to a point where people feel confident that the organisation will support them if they make complaints about such matters. If culture is seen as a taboo topic, then positive duty will be viewed similarly.

Moving forward: Practice next steps

Kirsten recommends the following natural next steps for organisations serious about positive duty compliance:

1. To conduct a comprehensive review of their existing policies and procedures

Leaders must begin by conducting a thorough policy audit, asking themselves critical questions:

‘What policies have we got now?’

‘How well do they reflect our organisational values?’

‘And what needs to be updated to comply with the legal requirements?’

This self-assessment enables leaders to identify policy gaps and areas of non-compliance. By proactively developing robust prevention strategies and establishing clear, accessible complaints procedures, organisations can avoid the significant financial and reputational costs that come with reactive responses to unlawful behaviours.

2. Organise a comprehensive cultural risk assessment

Organisations must establish a robust sexual harassment prevention plan, supported by training and development of managers and board members, alongside updated policies and procedures. Leadership must set an example by embodying these standards with overt commitment.

Kirsten emphasises that developing a plan is merely the starting point of the compliance journey. True effectiveness requires going much deeper, creating meaningful policies, accessible grievance procedures, and comprehensive training programs that drive lasting behavioural change.

This can no longer be treated as solely as a HR responsibility.

3. Engage independent expertise when internal HR resources aren’t sufficient

Many organisations underestimate the complexity of positive duty implementation and attempt to handle it entirely with internal resources. However, bringing in external expertise is often essential for success. Here’s why.

Our independent workplace advisory specialists bring several critical advantages:

1. they offer objective assessment free from internal politics
2. possess deep experience across multiple industries and organisational contexts;
3. and understand the latest regulatory requirements and best-practice approaches.

Moreover, external experts can conduct more effective risk assessments and employee surveys, as staff are typically more willing to share sensitive concerns with independent parties. This leads to more accurate data and more targeted solutions.

Our organisation employs experienced psychologists who factor in the psychological impacts of recurring unlawful behaviours when conducting risk assessments, ensuring a holistic and nuanced approach at resolving the cultural and behavioural issues.

4. Implement workplace training to educate managers and board members about their responsibilities in this space

Training and development is not optional anymore. It requires strong leadership commitment from the get-go.

Leaders must create environments where harassment simply doesn’t occur, while also ensuring robust systems prevent reoccurrence of unlawful behaviours.

Kirsten strongly advocates for relevant training that equips leaders and executives with the tools, resources, and legal knowledge necessary for effective positive duty implementation. She recommends undertaking training facilitated by subject-matter experts to understand best-practices around managing poor behaviours.

The key takeaway? Organisations that consistently engage in professional development feel more confident discussing challenges openly and sharing best practices, ultimately creating genuinely safe and respectful workplaces for everyone.

Where to from here?

Two years into the positive duty era, organisations treating this as a compliance checkbox are falling behind. Those embracing it as a strategic imperative are building stronger cultures while mitigating significant legal and psychological risks.

Organisations that act decisively now will achieve compliance and gain competitive advantage in talent attraction and retention.

The question is no longer whether to act, but how quickly can you transform from reactive compliance to proactive culture building.

For expert guidance on positive duty implementation, contact our team for a confidential consultation.

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