The positive duty under the Sex Discrimination Act changed the question employers have to answer. It used to be “did you respond appropriately when something happened?” It is now “what reasonable and proportionate measures are you taking to make sure it does not?” That is a shift from reactive to proactive, and it applies to businesses of every size.

What the duty covers

Employers must take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based harassment, sex discrimination, hostile workplace environments on the ground of sex, and related victimisation. The Australian Human Rights Commission has powers to inquire into and enforce compliance.

Importantly, this sits alongside — not instead of — your work health and safety duties. Sexual harassment is a psychosocial hazard, and WHS law requires you to identify and control it like any other risk.

“Reasonable and proportionate” for a small business

Nobody expects a ten-person business to run the programme a bank runs. Proportionality is built into the duty. What is expected is that you have genuinely turned your mind to the risk and done something sensible about it. In practice:

  • Leadership sets the standard out loud. In a small business the owner’s behaviour is the culture. What gets tolerated at the top defines the boundary far more than any document.
  • A clear, short policy stating what is and is not acceptable, including from clients, customers and contractors — third-party harassment is squarely within the duty and is frequently ignored.
  • More than one reporting path. If the only route is “tell your manager”, and the manager is the problem, you have no reporting path. Name an alternative — a second person, or an external contact.
  • An actual risk assessment. Where does the risk sit in your business? Lone or isolated work, night shifts, alcohol at work events, customer-facing roles, significant power imbalances, a workforce of young or insecure workers. Write down what you found and what you did about it.
  • Training that people attend, recorded, and repeated. Once at induction and never again does not discharge the duty.
  • Support for anyone who reports, and visible protection from victimisation.
  • Review. Look at it annually, and after any incident.

Responding to a report

The response obligations have not gone away. Take it seriously, act promptly, keep it as confidential as the investigation allows, do not require the person to confront the alleged harasser, be fair to both parties, and take real action on the findings. If it is serious or involves someone senior, get external help — an investigation run by someone with a personal relationship to either party is difficult to defend regardless of how careful they are.

Why this deserves attention now

Aside from the legal exposure, the practical reality is that small teams have nowhere for a problem like this to go. In a large organisation someone can transfer. In a six-person business, an unresolved harassment issue takes out the whole team — usually by losing the person who raised it, who is very often the person you could least afford to lose.

The Australian Human Rights Commission publishes detailed guidance on the positive duty, including material aimed at small business. It is worth reading properly. The documentation part of this — the policy, the risk assessment, the reporting paths, the training record — is also the part that is quickest to put in place, and it belongs alongside the rest of your policy set.