Sexual Harassment Policy (Positive Duty)

What Is a Sexual Harassment Policy (Positive Duty)?

A Sexual Harassment Policy (Positive Duty) is a formal document that sets out how an Australian business will prevent and respond to inappropriate behaviour. In the past, many businesses only thought about harassment after a complaint was made. The law has changed.

This policy focuses on the "positive duty." This is a legal obligation under the Sex Discrimination Act 1984 (Cth). It requires employers and Persons Conducting a Business or Undertaking (PCBU) to take reasonable and proportionate measures to eliminate sexual harassment, sex discrimination and hostile workplace environments. It shifts the focus from fixing problems after they happen to actively stopping them before they start.

This policy is not just a list of rules. It acts as a practical tool for risk management. Under Australian Work Health and Safety (WHS) laws, sexual harassment is a psychosocial hazard. This means it presents a risk to psychological health, just like falling from a height presents a risk to physical safety. The policy connects your HR procedures with your safety obligations.

For a tradesperson working alone or a small business owner with a team, this document sets the standard for behaviour. It tells everyone what is acceptable and how to speak up if things go wrong. You might find it helpful to integrate this with a broader WHS Policy or a specific Code of Conduct to ensure all your bases are covered.

When to Use This Document

You need this document if you employ anyone in Australia. This includes full-time staff, part-time workers, casuals, apprentices and contractors. The positive duty applies to businesses of all sizes. It does not matter if you run a large corporate office in Sydney or a mobile plumbing business in regional Queensland. If you have staff, you have this duty.

There are specific times when you should create or update this policy.

Starting a new business If you are registering a new business, you should put this policy in place before you hire your first employee. It establishes a safe culture from day one.

Expanding your team If you are moving from a solo operation to having employees, you become a PCBU with clear legal responsibilities for worker safety.

Responding to legal changes The positive duty became legally enforceable in December 2023. If your existing policy only talks about "complaint handling" and does not mention "prevention" or "elimination," it is likely out of date and non-compliant.

High-risk industries Trades, construction, hospitality and medical workplaces often face higher risks due to working alone, in client homes or outside hours. If you operate in these sectors, this document is essential for managing those specific risks.

Victorian businesses If you operate in Victoria, you have had the positive duty under the Equal Opportunity Act 2010 for longer than the rest of the country. You must ensure your policy aligns with the seven standards issued by the Victorian Equal Opportunity and Human Rights Commission (VEOHRC).

Key Sections and Required Elements

A strong policy needs clear sections. It should not be a long, confusing legal text. It needs to be a working document. Below are the standard sections required to meet Australian law and best practice.

Section 1: Purpose and Commitment

This section explains why the document exists. It must state clearly that the business commits to eliminating sexual harassment. You should explicitly reference the Sex Discrimination Act 1984 and the positive duty. It should also acknowledge that sexual harassment is a psychosocial hazard under WHS laws. This opening sets the tone. It tells workers that the business is serious about safety, not just following rules.

Section 2: Scope and Definitions

You need to define what sexual harassment is. This prevents the "I didn't know it was offensive" defence. Use the definition from the Sex Discrimination Act. It covers unwelcome conduct of a sexual nature that a reasonable person would find offensive, humiliating or intimidating.

You must also define the scope. The Fair Work Act 2009 prohibits sexual harassment "in connection with work." This is a broad concept. Your policy must state that it applies to the physical workplace, but also to work trips, Christmas parties, training events and interactions on work-related social media or messaging apps. It should also cover harassment by clients, customers or third parties.

Section 3: Roles and Responsibilities

Everyone has a role to play.

• The Business/PCBU: The ultimate responsibility sits with the business owner or directors. They must ensure the measures are in place.
• Managers and Supervisors: They must model appropriate behaviour, act on reports immediately and ensure the work environment is safe.
• Workers: All staff must treat each other with respect. They also have a duty under WHS laws to take reasonable care for their own health and safety and the safety of others. This includes not engaging in harassment and reporting risks.

Section 4: Reporting and Support Mechanisms

This section provides the "how-to" for workers. You need to list multiple ways for a worker to report an issue. This might be a direct manager, an external contact person or an anonymous portal. If a worker feels unsafe reporting to their direct supervisor, they need an alternative.

You should also provide contact details for external support bodies. This includes the Australian Human Rights Commission and the relevant Safe Work authority in your state, such as Safe Work NSW or WorkSafe Victoria.

Section 5: Risk Management (The "Positive Duty" Clause)

This is the most critical part for legal compliance. It outlines the steps the business takes to prevent harassment. It should mention regular risk assessments, consultation with workers and training. By listing these actions, you demonstrate that you are taking "reasonable and proportionate measures." This is exactly what the regulator will look for if they investigate your business.

Section 6: Privacy and Confidentiality Disclaimer

You must handle personal information carefully. If your business has an annual turnover of more than $3 million, the Privacy Act 1988 applies. Even if you are smaller, state privacy laws may apply.

The policy should state that investigations will be kept confidential. However, you cannot promise absolute secrecy. If there is a risk to safety or a legal requirement to report to police or a WHS regulator, you may need to disclose information. The policy should say you will handle information "as far as practicable" and in line with the Australian Privacy Principles.

How to Write a Sexual Harassment Policy (Positive Duty) (Step by Step)

You do not need a lawyer to write the first draft, but you do need to follow a process to ensure it works.

Step 1: Assess Your Risks

Before you write, look at your workplace. A building site has different risks to a retail store. A mobile hairdresser working alone in client homes has different risks to an office worker.

Consider factors like isolated work, alcohol consumption at work events, lack of diversity and power imbalances. You can use a Risk Assessment Template to guide this process. This assessment will help you write specific clauses that address your real-world situation.

Step 2: Consult with Workers

This is a legal requirement under WHS laws. You must consult your workers on matters affecting their health and safety. Do not write the policy in a closed room and email it out.

Ask your team:

• What behaviour makes them feel uncomfortable?
• Do they feel safe reporting issues?
• Are there specific times or locations where they feel at risk?

Incorporating their feedback makes the policy stronger and ensures workers actually use it. A policy written without consultation can be evidence of a failure to discharge the positive duty.

Step 3: Draft the Content

Write in plain English. Avoid complex legal words. Use "we" for the business and "you" for the worker.

Start with a clear commitment statement. Then define the unacceptable behaviours clearly. Use examples relevant to your industry. For a trades business, this might include inappropriate comments on a job site or displaying offensive imagery in a ute. For an office, it might include inappropriate jokes in emails.

Ensure the reporting process is simple. Step-by-step instructions work best. "Talk to your manager" is a good start, but add "If your manager is the problem, contact X."

Step 4: Integrate with Other Documents

This policy should not sit in isolation. It needs to link to your other procedures.

• WHS Policy: Reference that sexual harassment is a psychosocial hazard.
• Bullying and Harassment Policy: Ensure the definitions do not clash.
• Disciplinary Procedure: Make sure workers know what happens if they breach the policy.
• Grievance Procedure: This is the step-by-step guide for handling the actual complaint.

You can use a Grievance Procedure document to handle the detailed investigation steps, keeping the policy focused on prevention and high-level principles.

Step 5: Review and Publish

Once drafted, review it against the research. Does it mention the positive duty? Does it cover "in connection with work"? Does it mention third-party harassment?

If you are in Victoria, check the VEOHRC standards. If you are a large business, check your Privacy Act compliance.

Then, publish it. Send it to all staff. Put it on your noticeboard. Add it to your induction pack for new hires. A policy that is filed away in a drawer does not meet the positive duty.

Common Mistakes to Avoid

Many Australian businesses make avoidable errors when creating these documents. Avoiding these mistakes will save you legal trouble and create a safer workplace.

Failing to Consult Workers As mentioned, consultation is a legal requirement under WHS legislation. Writing a policy in isolation is a common mistake. If a regulator audits your business, they will ask your staff if they were consulted. If the answer is no, you have not met your duty.

"Tick-a-box" Disclaimers Some businesses include a disclaimer saying "This is not a contract" and think that protects them. Under Positive Duty laws, having a policy on file is useless if the culture does not reflect it. The law looks at reasonable measures. If you have a policy but ignore complaints or allow bad behaviour to continue, the document itself will not protect you. It is a testament to your intent, not a shield against liability.

Ignoring "Connected with Work" Scope Many outdated policies only ban harassment "in the office" or "during work hours." This is non-compliant with the Fair Work Act. The law covers after-hours work functions, end-of-year trips and interactions on social media. If your policy is too narrow, it fails to protect your workers or your business.

Over-promising Confidentiality Promising "complete confidentiality" is dangerous. If an employee reports a serious assault, you may have a legal duty to report it to the police. If you promise absolute secrecy, you limit your ability to act. Use phrases like "confidentiality as far as practicable" to manage expectations.

Making the Document Too Long For tradespeople and micro-businesses, a 50-page corporate manual is useless. Industry practice favours "short-form" policies of 1 to 3 pages. Focus on the zero-tolerance statement, the definition of harassment, and the contact points for reporting. Keep it simple so people actually read it.

Forgetting Third-Party Harassment This is a major issue for trades and service providers. Your workers may enter client homes or deal with aggressive customers. If your policy only covers employee-on-employee harassment, you are missing a big risk. You must include clauses that state you will support workers if they are harassed by clients or customers, and what steps you will take to manage that risk.

Legal Considerations (AU)

Australian law is strict on this issue. Understanding the framework helps you write a compliant policy.

The Sex Discrimination Act 1984 (Cth) This is the federal law that introduced the positive duty. The Australian Human Rights Commission (AHRC) enforces this duty. They can investigate businesses even if no complaint has been made. They can issue compliance notices. Your policy must reference this Act and the AHRC guidelines.

Work Health and Safety (WHS) Laws Sexual harassment is a psychosocial hazard. The model Work Health and Safety Act 2011 (and state equivalents like the WHS Act 2011 (NSW)) requires you to eliminate or minimize risks to health and safety. This requires the policy to be part of a broader risk management system. You must treat harassment like any other safety risk. This means identifying it, assessing it, controlling it and reviewing it.

Fair Work Act 2009 Section 28B of the Fair Work Act prohibits sexual harassment "in connection with work." This extends liability beyond the office. If your policy does not reflect this broad scope, it is not legally accurate. The Fair Work Commission can deal with complaints of sexual harassment and can order compensation.

State Variations While federal laws apply nationally, some states have specific requirements.

• Victoria: The Equal Opportunity Act 2010 is very specific. The VEOHRC has issued seven standards that workplaces must meet. Your policy needs to align with these standards, which cover data collection, risk assessment and training.
• NSW and other states: While the positive duty is federal, state anti-discrimination bodies also handle complaints. Ensure your policy lists the relevant body for your state.

Privacy Act 1988 If your business turnover exceeds $3 million, or you fall under specific exemptions, you must comply with the Privacy Act. This means how you collect and store complaint data is regulated. Your policy needs a disclaimer about this. Even smaller businesses should be careful with personal data to avoid breaching general privacy principles.

Frequently Asked Questions

Do I need a separate policy for sexual harassment? Not necessarily. Many Australian businesses now integrate this into their WHS or Code of Conduct policies. However, it must be clearly distinguishable. If you merge them, ensure you still cover all the definitions and reporting steps required by the positive duty.

Does the positive duty apply to volunteers? The Sex Discrimination Act defines "employer" broadly. While the specific application can vary, WHS duties certainly apply to volunteers in many contexts. It is best practice to extend the protection of your policy to volunteers and contractors to ensure a safe environment for everyone associated with your business.

How often should I update the policy? You should review it at least annually. You must also review it if there is a change in law, a change in your business structure or if an incident occurs that highlights a weakness in the policy.

Can an employee be personally liable? Yes. Under the Sex Discrimination Act, individuals can be personally liable for their own acts of sexual harassment. The policy should make this clear to workers.

What if I run a business from my home? The location of the business does not change the legal obligations. If you employ staff, you are an employer. The policy still applies. In fact, working from a home office can blur boundaries, making clear definitions of "in connection with work" even more important.