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Sexual Harassment and the Positive Duty of the Employer


The Sex Discrimination Act 1984 was amended in December 2022 to introduce a new positive duty for employers in respect of sexual harassment and victimization in the workplace.

The positive duty requires all employers and PCBU’s to take ‘reasonable and proportionate measures’ to eliminate as far as possible unlawful sexual harassment, sex-based harassment, and conduct that creates a hostile environment and victimisation. This means that an employer or PCBU can no longer only act on complaints retrospectively, but must introduce “reasonable and proportionate measures” that actively prevents sexual harassment and victimization from occurring to begin with. This duty extends to the conduct of third parties towards employees and workers.

From 13 December 2023 the Human Rights Commission will have new functions and powers to monitor and assess a company’s compliance with their positive duty including permitting a representative body (such as a union) to initiate proceedings in the federal courts.

Members are encouraged to implement reasonable and appropriate measures to comply with its positive duty.

If you are unsure of your obligations in relation to positive duty, please contact our Workplace Relations and Legal Team on (02) 6175 5900.