Recent media reports have highlighted a significant increase in workplace sexual harassment and sex discrimination complaints being lodged with both the Fair Work Commission (FWC) and the Australian Human Rights Commission (AHRC). The increase is occurring alongside the introduction of the “positive duty” obligations under the Sex Discrimination Act 1984 (Cth), which require employers to take proactive steps to prevent unlawful conduct before it occurs.
For all employers, the message is clear, it is no longer sufficient to respond to complaints after they arise. Employers must be able to demonstrate that they are actively taking reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and related unlawful conduct in their workplaces as far as possible and before it occurs.
Complaints Continue to Increase
According to the July 2026 Workplace Express article “Harassment positive duty a game-changer”, citing comments from Australian Human Rights Commission Sex Discrimination Commissioner Anna Cody, the AHRC has received 143 positive duty complaints since December 2023, commenced six formal inquiries and is monitoring a further 18 employers for compliance with their positive duty obligations.
AHRC complaint data referenced in the July 2026 Workplace Express article showed employment-related sex discrimination complaints, including sexual harassment, increased from 395 in 2023-24 to 545 in 2025-26.
The FWC has similarly reported increasing sexual harassment applications since the Respect@Work reforms, highlighting the growing willingness of employees to pursue complaints and the importance of employer compliance with legal obligations.
Understanding the Positive Duty
Positive duty was introduced following the Respect@Work reforms and places a legal obligation on employers to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments on the ground of sex, and victimisation.
Importantly, the duty is proactive rather than reactive. Employers cannot rely solely on policies and responding to complaints; they must continually assess workplace risks and implement practical measures to prevent inappropriate conduct before it occurs.
Employer Obligations Under Federal and South Australian Laws
Sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth) and the Equal Opportunity Act 1984 (SA). Employers can be held vicariously liable for sexual harassment committed by workers unless they can demonstrate they took reasonable steps to prevent and appropriately address the conduct. Sexual harassment is also a recognised psychosocial hazard under WHS laws, requiring employers to identify, assess and control associated risks so far as is reasonably possible.
What Does This Mean for Employers?
The AHRC expects employers to demonstrate active compliance with their positive duty by maintaining up-to-date policies, providing regular training, implementing clear reporting processes, supporting workers to raise concerns, promptly investigating complaints, taking appropriate action where misconduct is substantiated, and regularly reviewing workplace culture and risks. Leadership commitment, education, effective complaint handling and preventative planning are key indicators of compliance.
Harassment Can Extend Beyond Employees
Workplace sexual harassment is not limited to employee interactions and may also involve customers, clients, contractors, suppliers, visitors or other third parties. Employers must take reasonable steps to identify, minimise and manage these risks as part of their positive duty and WHS obligations.
Increased Regulatory Scrutiny
All employers should be aware that the AHRC now has powers to investigate compliance with the positive duty and, where it reasonably suspects non-compliance, may request information, conduct inquiries, make findings, issue compliance notices and seek enforcement through the courts.
While the AHRC has stated that it prefers a collaborative approach and often works with employers to improve compliance, the Commission has confirmed that formal inquiries are already underway across a range of industries.
Free Training Available
MTA strongly encourages members to familiarise themselves with their obligations under the positive duty framework.
The Australian Human Rights Commission provides a free online training program, “Positive Duty under the Sex Discrimination Act“, designed to help employers understand their obligations and implement practical measures within their workplaces.
The training, together with the AHRC’s guidelines and resources, can be accessed through the Australian Human Rights Commission website.
Key Takeaways for Members
The era of waiting for a complaint before taking action has passed. Regulators now expect employers to proactively identify and address risks relating to sexual harassment and sex discrimination in the workplace.
Businesses that can demonstrate genuine preventative measures, effective training, clear reporting pathways and a commitment to respectful workplace culture will be far better positioned to meet their legal obligations and reduce the risk of costly complaints, investigations and litigation.
Employers should also recognise that inappropriate behaviour by customers, contractors, suppliers and other visitors can expose businesses to legal and WHS risks. The positive duty requires employers to take reasonable and proportionate measures to prevent these risks wherever reasonably possible.
MTA members who would like assistance reviewing workplace policies, complaint handling processes or staff training requirements are encouraged to contact the Workplace Relations team for advice and support.
Contact the MTA Workplace Relations Team before acting. A short phone call at the start of the process could save significant time, cost and risk later. We can be contacted via phone on 08 8291 2000 or by email: wr@mtasant.com.au
