The positive duty mandates organisations to take “reasonable and proportionate measures” to prevent sex-based discrimination in the workplace. Unlike previous mechanisms that relied on post-incident complaints, the positive duty emphasises proactive measures before harm occurs. The rationale behind this approach is to mitigate the serious and long-lasting impact of discrimination, harassment, and victimisation on individuals and the broader workforce.

Limitations of legal avenues for workplace psychological abuse

The positive duty is a step forward in preventing sexual harassment, but addressing workplace psychological abuse that is not physical or based on a protected class continues to present significant challenges. Existing legal options are fragmented and confusing, for example:

• Anti-discrimination laws only apply to protected classes.
• Fair Work focuses on resolution rather than fines or penalties and can leave targets in compromised situations.
• Work health and safety regulations can only be enforced by regulators; carry a high evidentiary burden, and state workers’ compensation laws vary, offering limited recourse.
• Common law causes of action are variable, uncertain, time-consuming, and expensive.

US legislation: Steps towards filling the gaps

In contrast, many US states have introduced or are considering workplace psychological safety legislation to address some of the gaps. The proposed Massachusetts law, for example, not only makes abuse illegal without protected status but also proactively addresses psychological violence with measures that require employers to ensure a safe work environment. US legislation empowers targets by allowing targets to file restraining orders, call for investigations, pursue civil and criminal actions against individuals and employers, and publicly disclose outcomes. Reporting and training requirements further emphasise the need for employers to acknowledge, monitor, and prevent psychological abuse.

Positive duty’s impact beyond sexual harassment

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Returning to Australia and the positive duty, the potential for its influence beyond sexual harassment is due in part to the inclusion of “related acts” and the guiding principles and standards. Firstly, the positive duty covers not only sex discrimination and harassment but also “related acts of victimisation”, which could be interpreted broadly. Secondly, the four guiding principles – consultation, gender equality, intersectionality, person-centred and trauma-informed – along with the seven standards – leadership; culture; knowledge; risk management; support; reporting and response; and monitoring, evaluation and transparency – are to be implemented in all organisations. Both the standards and principles are elaborated upon extensively and, together, can go a long way toward stemming all forms of harassment.

Embracing positive duty can be a win for employers

Engaging with principles and standards under the positive duty can significantly contribute to creating psychosocially safe work environments in Australia. To make the most of the positive duty, employers must understand its implications, conduct thorough assessments, identify gaps and risks, develop and implement prevention and response plans, ensure continuous monitoring, and report and document their efforts. The positive duty, when embraced genuinely, has the potential to transform workplace dynamics and create safer, more inclusive work environments.

Dr Elizabeth Crawford Spencer is an adjunct professor at James Cook University. She has previously served as a professor at Charles Darwin University, and head of law and acting dean of the College of Business, Law, and Governance at James Cook University.