By Rebecca Spiliopoulos Associate | Australian Business Lawyers & Advisors

When the positive duty provisions came into effect in December 2022, many employers responded quickly by rolling out training programs, updating policies, and publishing zero-tolerance statements. But in 2025, the question must be asked: have you set and forgotten? 
 
The positive duty under the Sex Discrimination Act 1984 requires employers to take ‘reasonable and proportionate’ measures to eliminate unlawful conduct as far as possible. This isn’t a once-off compliance exercise, it requires continuous, proactive effort. 

From 12 December 2023, the Australian Human Rights Commission gained new powers to enforce the positive duty. With these powers now in effect, the Commission can investigate your workplace even if no complaint has been made, so every employer, no matter their size, must be ready to show they are actively complying with the positive duty.  

Applicant law firms are also well aware of these employer obligations, and are increasingly applying pressure in employment disputes where employers have left a ‘gap’ in their positive duty compliance. 

Below are the key areas your business should be focusing on to ensure you're prepared if the regulator comes knocking on your door or if an issue arises. 

 

It starts with leadership  

Knowledge and leadership is one of the core steps all employers, large or small, should be implementing to meet their obligations under the positive duty. Passive leadership is no longer enough. Leaders set the tone for workplace culture, so their ongoing awareness, accountability and action are essential. If your leadership team isn’t actively involved in ensuring your business is complying with its positive duty, now is the time for them to refocus their efforts before the regulator comes asking questions. Ask yourself:  

  • Are they up to date on any incidents that may have occurred over the past 6 to 12 months in your workplace?  
  • Do they understand their role in responding to, and preventing, unlawful behaviour?  

 

Time to re-train? 

Refresher training is essential, training delivered once and never reinforced quickly loses its impact. To be effective, training must be ongoing, tailored to your workplace, and responsive to any current risks your organisation is facing. 

Effective communication is just as important as training itself. It ensures that messages about your organisation’s zero-tolerance stance on unlawful behaviour are clear, consistent, and reach every employee. Regular communication reinforces expectations, keeps staff informed about policy updates, and encourages a culture where everyone feels empowered to speak up. Without ongoing communication, even the best training can fail to translate into real change. Consider: 

  • Have your employees had refresher training on workplace sexual harassment and the positivity duty in the last 12 months? 
  • Are leaders consistently reinforcing respectful workplace expectations through team meetings and internal communications? 

 

Review your risk assessment 

Your risk assessment is not just a paper pushing exercise which is completed once, in fact, it should be revisited at least annually. It requires engaging with your employees, analysing patterns of behaviour, and putting in place strategies to prevent harm. Ask yourself: 

  • When was the last time you reviewed your workplace risk assessment?  
  • Are you identifying where the risks of unlawful behaviour, like sexual harassment, sex discrimination, or a hostile workplace environment are likely to arise? 

 

Is your policy up to date? 

If the regulator comes knocking, having an out-of-date policy can send the wrong message, that being, that the business is not taking its obligations seriously. At a minimum, your policy must include definitions and examples of the following unlawful behaviours: sexual harassment, sex discrimination, sex-based harassment, a hostile workplace environment and victimisation. 

Your policy should also state how employees can report any unlawful conduct and should also detail the consequences that may arise if an employee is found to have engaged in such conduct. 

 

Are your employees clear on how to report any unlawful conduct? 

All your employees should clearly know how and where to report any unlawful behaviours that they experience or witness. Managers or key personnel responsible for handling reports must be well-versed in the correct procedures to follow when handling such reports. They should also ensure to approach each discloser with empathy and impartiality, using a person-centred and trauma-informed approach throughout the process. Handling reports and disclosures is a critical area where many businesses fall short, and where the consequences of getting it wrong are significant. 

Ask yourself: 

  • Do all your staff know exactly how to raise a concern? And do they know who to talk to, or what process to follow?  
  • Are the individuals responsible for managing reports equipped with the skills and knowledge to handle them appropriately? 

 

Revisit your Prevention Plan – Is it doing its job? 

One of the key steps to meeting your positive duty is having a Prevention Plan, but it can’t just sit on your intranet or in a folder collecting dust. Your plan must be a living document that is regularly reviewed and updated to reflect what’s actually happening in your workplace. Your Prevention Plan should outline the proactive steps that your business is taking to stop unlawful behaviour before it occurs, including training, environmental controls, leadership accountability, and measurable actions. Ultimately, your Prevention Plan is the blueprint for your organisation’s cultural and behavioural expectations. If it’s out of date or not being implemented, you’re not meeting your positive duty. Ask yourself: 

  • Have you updated it based on what’s occurred over the last 6 to 12 months in your workplace? 
  • Have you incorporated feedback from recent staff surveys, reports, or risk assessments? 
  • Have leaders been involved in reviewing and embedding the plan into operational practices? 

 

Final thought: Compliance is not a checkbox exercise 

The positive duty isn’t just about avoiding liability, it’s about leadership, safety, and respect. Compliance is not a checkbox exercise. It’s an ongoing commitment to proactively prevent harm in your workplace. So ask yourself honestly: 

  • Is your organisation doing everything it should? 
  • Are you being proactive, or reactive? 
  • If the regulator came knocking today, could you demonstrate the steps you've taken? 

 

If there’s any hesitation in your answers, now is the time to act. If you need help achieving ‘positive duty’ obligations in your business, we have created a toolkit to streamline the process.