The positive duty under the Sex Discrimination Act: what training actually satisfies it

The positive duty changed the question a regulator asks you. It used to be "what did you do after the complaint?" Now it is "what were you doing before there was one?"

Section 47C of the Sex Discrimination Act 1984 (Cth) requires employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, five categories of conduct: sex discrimination in employment, sexual harassment, harassment on the ground of sex, conduct that subjects a person to a hostile workplace environment on the ground of sex, and related victimisation.

The Australian Human Rights Commission's compliance powers commenced on 12 December 2023. It can inquire where it reasonably suspects non-compliance, issue compliance notices, accept enforceable undertakings and go to the Federal Court. It does not need a complainant to start.

What "reasonable and proportionate" means for you

The duty is scaled. What is reasonable for a 3,000-person mining contractor is not what is reasonable for a 12-person accounting firm. The Commission looks at the size and nature of the business, its resources, and whether a measure is practical including its cost. A small business is not expected to run a bespoke behavioural change programme. It is expected to have thought about where the risk sits and done something proportionate about it.

That scaling cuts both ways. If you are large, well-resourced and operating in a known high-risk setting (shift work, isolated work, alcohol at work events, heavy gender imbalance, power imbalance between workers and clients), the bar is higher and a generic annual module will not clear it.

The seven standards

The Commission's Guidelines for Complying with the Positive Duty set out seven standards, described as guiding principles:

Leadership. Senior leaders understand the duty, are accountable for it, and model the behaviour.
Culture. The workplace is safe, respectful and inclusive, and workers can speak up.
Knowledge. Expectations are set in policy and communicated so people actually understand them.
Risk management. The organisation identifies and controls risks of the relevant unlawful conduct, the same way it would any other hazard.
Support. People affected can get support whether or not they report.
Reporting and response. There are options to report, and responses are consistent, timely and fair.
Monitoring, evaluation and transparency. You collect data, check whether the controls are working, and are open about it.

Training touches three of these directly: knowledge, culture and, if it is aimed at the right audience, leadership. It touches none of the other four. That is the single most useful thing to understand about the positive duty. Buying a course does not discharge the duty. Not having one makes the knowledge standard very hard to argue.

What training has to do to be worth anything here

Content that names the conduct. Sexual harassment is the well-known one. Sex-based harassment and hostile workplace environments are the ones people get wrong. A worker needs to understand that conduct not directed at anyone in particular, such as pornographic material on a screen or a running commentary about women in the office, can be unlawful because of the environment it creates.

Content that reflects your actual risks. If your people work alone in client homes, the scenarios should be client homes. Generic office scenarios teach your workforce that the training is not about them.

Separate content for leaders. Managers have a different job: recognising a disclosure, responding without promising confidentiality they cannot deliver, escalating properly, and not retaliating. Putting managers through the all-staff module and calling it leadership training is the most common gap we see. It is worth running a distinct positive duty course for leaders alongside the all-staff module.

Records that survive scrutiny. Completion by person and date, the version of content they saw, and what the assessment actually tested. If your LMS cannot produce that for a named person for a date two years ago, your evidence problem is bigger than your content problem.

The overlap you should exploit

Sexual harassment is also a psychosocial hazard under work health and safety law, and since 6 March 2023 the Fair Work Act has prohibited sexual harassment in connection with work, with the Commission able to make stop sexual harassment orders (Fair Work Ombudsman). Three regimes, one underlying problem.

Run one risk assessment. Control the risk once. Then map the controls to each regime rather than building three parallel programmes that each half-cover the ground. Organisations that separate their "Respect at Work" work from their "psychosocial" work end up with two sets of documents and one set of unmanaged risks.

Where people go wrong

They train and stop. No monitoring, no data, no review, so the file shows one line of activity in three years.

They exclude the board and the executive. Leadership is the first standard, and the Commission's guidance is explicit that leaders are expected to know what is going on.

They train employees but not contractors, labour hire or volunteers who work alongside them, then discover the risk was concentrated exactly there.

They can produce the course but not the completion data. Under an inquiry, the second one matters more.

The positive duty is a prevention duty. Judge every measure you take by whether it plausibly reduces the chance of the conduct happening, not by whether it produces a certificate.

Common questions

Does annual sexual harassment training satisfy the positive duty?

No. Training is one measure among many. The Commission's Guidelines describe seven standards covering leadership, culture, knowledge, risk management, support, reporting and response, and monitoring. Training mostly answers the knowledge standard and helps with culture.

Who does the positive duty apply to?

Employers and persons conducting a business or undertaking. It is not limited to large organisations, though what counts as reasonable and proportionate is assessed against the size, nature and resources of the business.

Can the Australian Human Rights Commission enforce the positive duty?

Yes. The Commission's compliance powers commenced on 12 December 2023. It can inquire into suspected non-compliance, issue compliance notices, accept enforceable undertakings and apply to the Federal Court for orders.

Does the positive duty cover conduct by customers and clients?

The duty is about eliminating the relevant unlawful conduct as far as possible, which includes risks arising from third parties such as customers, clients and contractors. Customer-facing risk should be in your risk assessment.

How does this interact with WHS law?

Sexual harassment is also a psychosocial hazard under WHS law, so most organisations have overlapping duties. Sensible practice is to run one risk assessment and one control set that satisfies both.