Employer positive duty and psychosocial safety obligations in Australia

You can have a detailed employment contract, an up-to-date policy suite, and a high-performing team and still be exposed to serious regulatory liability if your workplace tolerates harassment, bullying, or poor psychological safety. Three distinct legal frameworks now impose compliance obligations on that territory — and they operate independently of each other.

What the positive duty under the Sex Discrimination Act actually requires

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 inserted s 47C into the Sex Discrimination Act 1984 (Cth), creating a proactive positive duty. The provision requires every employer and person conducting a business or undertaking (PCBU) to take reasonable and proportionate measures to eliminate, as far as possible, unlawful sex discrimination, sexual harassment, sex-based harassment, and hostile workplace environments based on sex. It commenced on 12 December 2022.

The critical shift from previous law is the word "eliminate" and its proactive framing. Before s 47C, the regulatory model was reactive: an employer's exposure arose when a complaint was made and the employer could not show it had taken reasonable precautions. Under s 47C, an employer must act without waiting for a complaint. Policies, training, and reporting mechanisms are a starting point, not a finish line — the question is whether reasonable and proportionate measures to eliminate the conduct are actually in place and operating.

From 12 December 2023, the Australian Human Rights Commission gained powers to conduct inquiries into positive duty compliance, issue compliance notices, and commence court proceedings for breaches. The AHRC has published seven standards — leadership, knowledge, risk assessment, support, reporting, response, and monitoring — as its framework for assessing whether a PCBU has met the duty.

What "reasonable and proportionate" means varies by size and sector. A business with 12 staff cannot be expected to implement the same structural controls as a national employer. But the proportionality principle does not reduce the obligation to a box-ticking exercise: the AHRC has signalled that it will look at whether measures are embedded in how work is actually done, not just whether a policy document exists.

How WHS law independently covers psychosocial hazards

Separately from the Sex Discrimination Act, work health and safety law imposes its own obligations on psychological harm at work.

Under s 19 of the Work Health and Safety Act 2011 (Cth), a PCBU must ensure, so far as is reasonably practicable, the health and safety of workers — and "health" expressly includes psychological health. The Act imposes obligations across the whole working environment, including systems of work, workplace relationships, and the way management is conducted.

Division 11 of Part 3.2 of the Model Work Health and Safety Regulations (introduced in April 2022 and adopted in substance across most jurisdictions) adds specificity. Regulation 55A defines a psychosocial hazard as anything that could cause psychological harm — examples include job demands, low job control, poor support, conflict, harassment, and violence. Regulation 55B defines the resulting risk. Regulation 55C requires PCBUs to manage psychosocial risks in accordance with Part 3.1's risk management framework: identify, assess, control, and review.

The practical implication is that managing psychosocial hazards is not optional and is not confined to obvious cases like physical threats or sexual harassment. Workplace conflict, workload that is genuinely unreasonable, a culture that normalises exclusion or disrespect, poor communication from management — all of these can constitute psychosocial hazards if they carry a real risk of psychological harm. A PCBU must be able to demonstrate that it has identified which psychosocial hazards exist in its workplace, assessed the risk they pose, and put controls in place proportionate to that risk.

The Safe Work Australia Model Code of Practice: Managing Psychosocial Hazards at Work (2022) is not law, but it sets the benchmark for what a regulator will treat as adequate risk management. Under the WHS Act, compliance with a code of practice is one way of demonstrating that a duty has been met, and failure to follow a code is something a court can take into account.

When the Fair Work Act anti-bullying jurisdiction applies

The third framework is narrower in scope but operationally significant. Under s 789FC of the Fair Work Act 2009 (Cth), a worker who reasonably believes they have been bullied at work may apply to the Fair Work Commission for an order to stop the bullying. The definition of "worker" tracks the WHS Act 2011 and includes employees, contractors, subcontractors, apprentices, trainees, and work experience students.

Section 789FD defines when a worker is bullied at work: an individual or group of individuals must repeatedly behave unreasonably towards the worker, and that behaviour must create a risk to health and safety. Both elements are required. A single incident — however serious — does not meet the statutory definition. "Unreasonable" is assessed objectively, having regard to all relevant circumstances.

The provision most frequently invoked by employers is the exclusion in s 789FD(2): reasonable management action carried out in a reasonable manner is not bullying. This matters because performance management, issuing a written warning, directing an employee to comply with a lawful policy, or restructuring a role can all look like bullying to a recipient who objects to the outcome. The legal line is drawn at whether the action taken and the manner of its delivery were both reasonable — not just the action in isolation.

The FWC's power under Pt 6-4B is limited to making orders to stop bullying. It does not award compensation. The risk to an employer is primarily reputational and operational — a formal proceeding, an order binding management conduct, and the disruption that accompanies it — rather than a direct financial penalty. However, if the conduct also involves a general protections issue, a discrimination claim, or a personal injury arising from psychiatric harm, the exposure widens considerably.

Where the three frameworks overlap — and where they diverge

The same conduct can trigger obligations or claims under all three frameworks simultaneously. Persistent sexual harassment at work is, at the same time: a potential breach of the positive duty under s 47C of the Sex Discrimination Act; a psychosocial hazard requiring management under the WHS Act and Model Regulations; and, if repeated and creating a health and safety risk, conduct caught by s 789FD of the Fair Work Act.

The frameworks differ in key respects:

• Who enforces. The AHRC enforces the positive duty under the Sex Discrimination Act. State and territory WHS regulators (and Comcare for Commonwealth employees) enforce the WHS Act and regulations. The FWC handles anti-bullying applications under the Fair Work Act.
• What triggers action. The positive duty requires proactive compliance without any complaint or incident. WHS obligations are also proactive but typically engaged by a specific identified hazard or risk. The FWC anti-bullying jurisdiction is triggered by an application from a worker.
• What "reasonable" means. All three frameworks use a reasonableness standard, but proportionality is assessed differently in each: by reference to size and resources under the Sex Discrimination Act, by "so far as is reasonably practicable" under the WHS Act, and by the particular management action and manner under the Fair Work Act.

Employers who manage these obligations as three separate checklists miss the point. The overlapping zone — particularly persistent harassment, exclusion, and unreasonable workload — is where regulatory exposure concentrates and where a single incident can become a multi-forum problem.

Where an Artificer Legal practitioner can help

These obligations involve judgement calls that a compliance framework alone cannot resolve. An Artificer Legal employment lawyer can assist with:

• Gap assessment. Auditing your existing policies, training, and reporting structures against the AHRC's seven standards and the Model Code of Practice to identify specific gaps — not just whether policies exist, but whether they are fit for purpose.
• Proportionality analysis. Advising what "reasonable and proportionate" looks like for a business of your size and sector, and what investment in controls is defensible versus excessive.
• Responding to complaints and applications. If a worker lodges an FWC anti-bullying application or an AHRC inquiry is commenced, immediate legal advice on how to respond, what records are required, and how to engage with the process is critical. Early decisions in these proceedings affect the outcome.
• Drafting and reviewing documents. Policies that satisfy the positive duty standard are meaningfully different from generic HR documents. Contracts and position descriptions that support a reasonable management action defence need to be drafted with that outcome in mind.
• Training management. Helping you deliver manager training that explains the legal line between performance management and bullying — and that creates a record of that training for use in any subsequent proceeding.

Getting the foundations right before something goes wrong

The most common mistake Australian employers make is treating these obligations as reactive: waiting for a complaint before reviewing whether their practices are adequate. Under the positive duty, that is the wrong posture — the legal obligation runs to eliminating conduct before harm occurs, not to responding appropriately after it does.

Key points from this article:

• Section 47C of the Sex Discrimination Act 1984 (Cth) requires employers and PCBUs to proactively take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and sex-based harassment. The positive duty has been in force since 12 December 2022; AHRC enforcement powers commenced 12 December 2023.
• Division 11 of Part 3.2 of the Model WHS Regulations (regs 55A–55C) requires PCBUs to identify, assess, and control psychosocial hazards — including harassment, conflict, poor support, and unreasonable demands — as part of their primary duty under s 19 of the WHS Act 2011 (Cth).
• Sections 789FC and 789FD of the Fair Work Act 2009 (Cth) allow workers to apply to the Fair Work Commission for orders to stop bullying, defined as repeated unreasonable behaviour creating a health and safety risk. Reasonable management action carried out reasonably is expressly excluded.
• The three frameworks are independent but overlapping. The same conduct can engage all three simultaneously, with different enforcement bodies, remedies, and standards of reasonableness in play.
• Compliance requires more than policy documents: it requires embedded practices, trained managers, functional reporting channels, and records that demonstrate all of the above.