Preventing Sexual Harassment in the Workplace: Understanding Your Positive Duty

In Australia, managers now have a ‘positive duty’ to take proactive and reasonable steps to eliminate sexual harassment, workplace harassment, and workplace bullying before it occurs. Under the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009, employers and managers must actively address risks, promote safe work environments, and enforce strong workplace policies. This means more than just reacting to complaints — it’s about creating a respectful culture, preventing unlawful harassment, and protecting your people from any conduct of a sexual nature that could amount to criminal conduct under Australian law.

The Australian Human Rights Commission and Safe Work Australia emphasise that workplace sexual harassment can include sexual advances, sexual jokes, unwelcome sexual conduct, obscene language, and even certain workplace relationships if they involve a power imbalance or lack of genuine consent. A reasonable person, looking at the situation, would consider whether the behaviour could cause offence, humiliation, or intimidation.

Your Legal Obligations as a Manager

Australian law imposes overlapping duties through the Sex Discrimination Act, Work Health and Safety Act 2011, and Fair Work Act. If you are part of the Australian Public Service, you must also comply with the Public Service Act 1999 and the Australian Public Service Commissioner’s Directions 2013, which set out respectful, accountable, impartial, and ethical workplace values.

Under these frameworks, managers must:

• Identify and assess risks of workplace harassment, including online interactions.
• Implement preventative anti-harassment training and behavioural policies tailored to your work environment.
• Enforce workplace policies consistently to address discrimination law breaches.
• Respond promptly to complaints through your HR department or designated Harassment Contact Officers.
• Protect employees from reputation damage or victimisation after raising concerns.

Failure to meet these duties can result in findings by the Fair Work Commission, Federal Magistrates Court, or relevant state bodies such as the Queensland Anti-Discrimination Tribunal.

Is Flirting or Asking a Coworker Out Harassment?

Workplace relationships are not prohibited outright, but they become risky if there is a sexual element that is unwanted or linked to power dynamics. If a manager or senior employee asks out a subordinate, a reasonable person could view it as pressure — especially if there is an implied link to career benefits or threats.

Cases such as Aldridge v Booth and Font v Paspaley Pearls have shown that persistent invitations, sexual jokes, or inappropriate comments can amount to unlawful harassment. Even one instance of unwanted touching or sexual behaviour can be both a breach of workplace policy and a criminal offence, reportable to police.

Building a Culture Where Reporting is Safe

A respectful, safe, and inclusive workplace doesn’t happen by accident — it’s designed and led. To meet your positive duty:

• Lead by example — managers should demonstrate Respectful, Accountable, Impartial, and Ethical workplace values.
• Provide multiple reporting pathways — HR department, harassment contact officers, anonymous forms, or external reporting lines.
• Ensure confidentiality and protection — safeguard employees from retaliation or gossip that could cause further harm.
• Engage in regular online training — ensure all staff understand their rights and responsibilities under relevant laws.
• Partner with support services — offer employee assistance programs and access to counselling.

The Role of Criminal and Civil Law

Some workplace sexual harassment can also be criminal conduct — for example, sexual assault or stalking — and should be reported to police immediately. Under criminal offences law, victims have the right to pursue charges while also lodging a civil complaint for unlawful harassment.

In the United States, similar protections exist under Title VII of the Civil Rights Act of 1964 and the Equal Employment Opportunity Commission guidelines, while in Australia, Safe Work Australia and the Australian Human Rights Commission set enforcement standards.

Why This Matters to Your Organisation

Ignoring or mishandling workplace harassment can result in:

• Financial penalties and compensation orders.
• Damaging legal cases (e.g., Queensland meat processing factory harassment ruling).
• Severe reputation damage in the community and industry.
• Loss of staff trust, engagement, and productivity.

With the Fair Work Commission’s increased focus on proactive compliance and the Respect@Work reforms, employers who fail to act are now on notice.

FAQ

Q: Does the positive duty apply to all businesses?

A: Yes. All employers, regardless of size, must take proactive steps to prevent harassment under Australian discrimination law.

Q: Can jokes be harassment?

A: Yes. Sexual jokes, obscene language, or sex-based hostility can amount to harassment if they offend or intimidate.

Q: What’s the role of the HR department?

A: HR is critical in implementing anti-harassment training, investigating complaints, and maintaining a safe work environment.

Q: What if harassment occurs online?

A: The same laws apply to online harassment, including emails, messaging apps, and virtual meetings.

Q: Are there US equivalents?

A: In the US, Title VII, Civil Rights Act of 1964, and EEOC guidelines cover workplace harassment and discrimination.