The Positive Duty

The positive duty requires organisations and businesses to take proactive, reasonable and proportionate measures to eliminate, as far as possible, the following conduct:

  • Discrimination on the ground of sex in a work context
  • Sexual harassment in connection with work
  • Sex-based harassment in connection with work
  • Conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex
  • Related acts of victimisation.

The positive duty extends to relevant unlawful conduct being engaged by external parties in the course of the business undertaken. Organisations and businesses can also now be held accountable even if no one makes an individual complaint. The SDA no longer requires a person to make a complaint of unlawful behaviour for the organisation or business to be held to account.

These reforms align the approach in the SDA with other workplace protections, including those set out in work health and safety (WHS) laws.

The latest changes to the law also give the Australian Human Rights Commission (the Commission) new inquiry and enforcement powers to ensure that organisations and businesses are complying with their positive duty. Businesses can be issued with a compliance notice and a federal court order to direct compliance.

Every workplace must develop, and use, a framework to outline how it complies, or plans to comply, with the positive duty by meeting the Commission’s Seven Standards (below) modelled on four basic principles (below).

The Standards

The Commission has come up with seven Standards that outline what they expect organisations and businesses to do. These must now become a permanent part of every workplace’s risk management and compliance work, as well as HR practices and team culture.

  1. Senior leaders are responsible for appropriate measures being taken, maintaining and ensuring knowledge and awareness and role model respectful behaviours.
  2. Workplaces must foster an inclusive work culture that values diversity and gender equality: use respectful and inclusive language, call out disrespectful behaviours or comments (everyday sexism), including by third parties such as patients.
  3. Everyone is clear on how to engage in respectful behaviours and what to do when exposed or witnessing harassment – through induction training, established policies. This is everyone’s business, not just supervisors. Download a sample policy for dental practice
  4. Harassment and inequality at work is a work health and safety risk, and as such a risk-based approach must be used to prevent and respond.
  5. Appropriate support is available to employees who experience or witness relevant unlawful conduct, whether they report formally or not.
  6. Everyone knows the established reporting avenues, both internal and external. Any internal responses must be consistent, timely and trauma-informed (that is, minimise harm to and victimisation of the people involved).
  7. We must track how we fare against these standards. This means data collection is involved to assess and improve work culture and ensure transparency.

The Principles

When implementing these seven standards, an employer will need to consider some basic concepts in their approach. These are core ethical principles that underpin positive actions against harassment, both in prevention and in response, and it’s worth being aware of them whether you’re an employer or an employee.

  • CONSULTATION: keep talking about what kind of workplace we want to be in, what options do you see that management haven’t seen yet? We also need to ensure that the voices we listen to are not just the most powerful ones – everyone has a voice. We work with patients, carers, external clients, being our contractors, visitors: we are always to some degree exposed to potential risks of harassment and disrespectful behaviours that do not come from our colleagues necessarily. What are the things that make us at risk of sexual harassment? Look at your workplace characteristics, like a hierarchical structure, the work environment, workplace composition?
  • GENDER EQUALITY is also a goal, so to speak. Every workplace, every industry should be one where all genders have equal rights, rewards, opportunities, and resources. Not just equal treatment, but equal outcomes. This is generally discussed as women being disadvantaged, but let’s not forget we need to work on non-binary inclusion in the workplace and in the services and language we offer to our stakeholders.
  • INTERSECTIONALITY is complex but it’s essentially recognising that all forms of inequality and discriminations compound and overlap. People’s lives are shaped by a unique mix of identities, relationships, social factors that intersect with the context where they operate and with the existing power structures. For example, a gender-diverse, older person from a racial minority with a disability and whose first language is not English, would almost certainly understand well the experience of intersectional discrimination!
  • PERSON-CENTRED & TRAUMA-INFORMED approach means learning and understanding how trauma affects people and how to avoid causing further harm. It’s important to understand that a person-centred response system does not necessarily mean doing what the person affected requests, but rather a genuine effort to consider needs and wishes, especially around safety and anonymity, or reasonable adjustments in work arrangements, for example. So the individual choice and dignity should be at the forefront of everyone’s action.

For more information on the SDA Standards and Principles, read the Australian Human Rights Commission’s Guidelines

Implementing the Standards at Your Organisation

The first step to implementing the Standards is to identify what the Commission expects of an organisation of your type and size.

Next, consult with your staff and relevant stakeholders to develop a document that details:

  • Desired outcomes
  • What practical actions have you already taken and/or will take to achieve them
  • How these actions and outcomes will be documented.

Lastly, a more detailed plan for prevention and response will record procedures, who is responsible for what and relevant timelines.

ADAQ can assist you in developing a Prevention and Response plan tailored to your dental practice, and identify practical actions that will have most impact for your workplace. Find out about our Compliance & Advisory Services.

Use this framework template to reflect on the above, and to start recording your plan of action. This Framework is based on the Guidelines which will be used by the Commission in assessing compliance with the positive duty.

Most importantly, as an employer, you must ensure your policies and processes are up to date and well communicated to employees and third parties. Remember, this is only your framework: you must keep all the relevant records you will need to prove you are implementing and monitoring your plan. These records will be likely requested by the Commission at a possible audit.

Always refer back to the Guidelines and other resources for small businesses on the Commission’s website

I am an Employee/Contractor – What Can I Do?

Your workplace should welcome everyone to speak up and take action on any form of harassment and unlawful behaviour at work, by colleagues or by other people as part of our jobs.

If you know there’s a better way to ensure everyone’s physical and psychological safety at your workplace, or you’re aware of potential challenges, let your manager know.

Follow the links below for some useful resources on what to do if you are sexually harassed at work, seeking advice about your workplace rights, making complaints and in general to be more informed about these issues:

What if the Patient is the Problem?


Remember: anyone can be a harasser just as anyone can be harassed.

If a patient is the harasser, dental practice employees should be encouraged to ask the patient to stop the behaviour, stating clearly that it makes them uncomfortable, before attempting to continue care. Don’t respond to ‘harmless’ banter or funny jokes if the remarks make you uncomfortable. Any patient-initiated harassment should be recorded: document all steps taken and any responses, from the very first interaction of concern.

While it may at time be a difficult financial decision to take, termination of patient care must be considered.

Managers and supervisors must be trained to handle difficult situations and make tough decisions around inappropriate conduct.

Download Decision Tree Graphic


Key web resources