Key points

• New legal obligations: As of 1 December 2023, amendments to the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth) require employers to proactively prevent sexual harassment, sex-based discrimination, and victimisation in the workplace, moving beyond reactive measures.
• Compliance and enforcement: The Australian Human Rights Commission (AHRC) now has the authority to monitor and enforce compliance. Employers must implement tailored strategies such as updated policies, targeted training, and robust reporting systems to manage risks and demonstrate compliance.
• Importance of proactive measures: Businesses must actively review and update their frameworks to prevent prohibited behaviours, with a focus on risk assessments, clear anti-harassment policies, and strong leadership. Compliance is crucial to avoid legal and reputational risks and to foster a safer workplace culture.

On 1 December 2023, amendments to the Sex Discrimination Act 1984 (Cth) introduced a positive obligation on employers to prevent sexual harassment, sex-based discrimination, and victimisation in the workplace. The positive obligation is reinforced by the prohibition of sexual harassment in connection with work incorporated into to the Fair Work Act 2009 (Cth) from 6 March 2023. Rather than addressing sexual harassment only when complaints arise, employers must now implement proactive strategies tailored to risks in their specific workplaces.

The changes are reflective of the Federal Government’s commitment to implementing each of the 55 recommendations in the Respect@Work: Sexual Harassment National Inquiry Report (2020), and aims to move beyond reactive measures, requiring employers to actively create safer work environments.

Anecdotal evidence indicates that Australian businesses and boards are not currently taking active steps to comply with the positive duty to prevent workplace sexual harassment and sex-based discrimination at work. Where active steps — such as Board level training, data collection, culture reviews or risk assessments — are not undertaken, it will be difficult for employers to demonstrate compliance with the new laws has occurred.

The Australian Human Rights Commission (AHRC) now has the power to monitor compliance, conduct investigations, and issue enforceable notices if employers fall short of the expected standard. Employers must consider factors such as their industry, workforce demographics, and working conditions when employing strategies to manage these risks. Steps could include updated policies, targeted training, and systems that encourage reporting and support for affected workers.

To reduce the risk of non-compliance, businesses should start reviewing their frameworks and implementing measures that minimise prohibited behaviours in the workplace. This may start with risk assessments tailored to your industry and workforce, implementation of clear anti-harassment policies, and regular training. It is also important to maintain strong reporting channels to monitor workplace culture, review complaint handling systems, and ensure senior leadership actively promotes a respectful culture.

Compliance with the duty is critical — both economically and reputationally. Non-compliance may lead to public inquiries, enforcement action, and/or significant financial penalties. Additionally, the reputational damage from failing to address workplace harassment can affect employee trust in the business, public perception, and overall business performance. Proactively meeting these expectations not only minimises legal risks and protects a business’ reputation, but also supports a safer, more respectful workplace culture.

The introduction of the positive obligation for businesses highlights the growing emphasis on prevention and cultural shifts in Australian workplaces. The responsibility now firmly rests on employers to take the lead in creating safe environments for their workers.