Sexual harassment Positive Duty under s 47C SDA: what employers must do

What the positive duty is

Section 47C of the Sex Discrimination Act 1984 places a positive duty on PCBUs (employers and persons conducting a business or undertaking). This duty requires them to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, conduct creating a hostile workplace, and victimisation.

The focus of this duty is preventative. PCBUs are required to take action to prevent the specified conduct from occurring, rather than simply responding to incidents after they have already happened.

The positive duty came into effect on 12 December 2022. The Australian Human Rights Commission’s (AHRC) enforcement powers relating to this duty commenced on 12 December 2023.

What 'reasonable and proportionate' means

The concept of ‘reasonable and proportionate’ measures is central to fulfilling the positive duty. It acknowledges that the specific actions an employer takes to prevent sexual harassment will vary depending on the individual organisation. This means there is no one-size-fits-all approach.

The Australian Human Rights Commission (AHRC) guidance clarifies that what constitutes reasonable and proportionate is assessed considering several factors. These include the size and resources available to the organisation, the nature and circumstances of the business it operates in, and the practicality and cost of implementing preventative measures.

Essentially, employers must consider what they can realistically achieve given their specific context. The AHRC’s guidance identifies seven standards to assist in this assessment: leadership; culture; knowledge; risk management; support; reporting and response; monitoring, evaluation and transparency.

AHRC enforcement powers

The Australian Human Rights Commission (AHRC) has powers to enforce the positive duty obligations under s 47C of the *Sex Discrimination Act 1984*. These powers allow the AHRC to inquire into whether employers are complying with their obligations, and to request information from employers to assess compliance.

The AHRC can issue a compliance notice requiring an employer to take specific action to meet their obligations. Alternatively, the Commission may accept an enforceable undertaking from an employer, which is a written agreement outlining steps the employer will take to address any identified non-compliance.

If an employer fails to comply with a compliance notice or an enforceable undertaking, the AHRC can apply to the Federal Court for orders to compel compliance. The Commission has been progressively rolling out inquiries since enforcement commenced in late 2023. Consider using a workplace investigation timer to ensure timely responses to any inquiries.

What employers should have in place

To comply with the positive duty under s 47C of the Sex Discrimination Act, employers must establish and maintain specific measures. These include a board-level statement that clearly articulates expectations and accountability regarding sexual harassment. This statement demonstrates commitment from leadership and sets the tone for workplace behaviour. penalty estimator

Employers also need to conduct a documented risk assessment to identify potential hazards related to sexual harassment. This assessment should consider the entire workplace, including interactions with third parties such as customers and clients. A clear, confidential, and trauma-informed reporting pathway is essential to enable employees to report incidents without fear of reprisal.

Finally, employers must implement regular, role-relevant training that is periodically refreshed to ensure ongoing awareness and understanding. Monitoring and review cycles are also required, and these should generate evidence that the implemented controls are effective.