Positive duty
Equal opportunity is about more than just fixing issues as they arise. True equal opportunity means creating an environment where unfair treatment and problem behaviour is unlikely to happen in the first place.
Under the Equal Opportunity Act 2010, organisations have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible. This means that positive action should be taken to prevent these behaviours – regardless of whether someone has made a complaint.
Who does the positive duty apply to?
The positive duty applies to everyone who already has responsibilities under the Equal Opportunity Act. This includes:
- employers
- providers of accommodation, education, or goods and services
- clubs and sporting organisations.
Organisations have obligations both as an employer and in their interaction with the community.
For example, an employer of a business has an obligation to both their staff and their clients to prevent and respond to any discrimination, sexual harassment or victimisation.
The positive duty is aimed at protecting certain groups such as employees, students, customers, consumers, and club members, from harm.
What is the positive duty?
Victoria is unique in having a positive duty, which creates an opportunity to prevent unlawful behaviour. It helps organisations put a healthy workplace culture in place, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries don’t occur.
The positive duty is about addressing the systemic causes of discrimination, sexual harassment and victimisation.
Set out below are the five minimum standards that all organisations must follow in order to comply with the positive duty under the Equal Opportunity Act. The standards require actions to be taken to both prevent and respond to discrimination, sexual harassment and victimisation.
Reasonable and proportionate measures
In describing the positive duty, the Act calls for “reasonable and proportionate measures to eliminate … discrimination, sexual harassment or victimisation as far as possible.”
While every duty holder in Victoria must comply with the minimum standards, the specific measures or actions required of organisations will vary according to the size of the organisation and the resources available. Bigger organisations will be expected to do more than smaller ones.
Factors that must be considered include the:
- size of the business or organisation
- resources and budget available
- nature of the business and its operational priorities
- the cost of the measures and whether they can actually be put into place effectively.
This means there can be some flexibility in the measures taken to meet the positive duty. Smaller organisations with fewer resources can still undertake a range of practical measures to eliminate discrimination.
Examples of the positive duty
How can my organisation meet its positive duty?
The Commission has identified five minimum standards that organisations must meet to comply with their positive duty to eliminate discrimination, sexual harassment and victimisation.
For each standard there are expectations of what organisations should do and suggested actions for organisations to take in order to meet these expectations.
Overview of the standards
Standards 1–3 are directed towards prevention – that is, stopping discrimination, sexual harassment and victimisation from happening in the first place. This is done by:
- ensuring there is an understanding of everyone’s rights and responsibilities
- creating robust policies and procedures
- ensuring leaders are creating a culture of respect and build organisational capability.
Standards 4–5 are about responding to instances of discrimination, sexual harassment and victimisation. This is done by:
- creating robust reporting and complaint procedures
- setting up an effective and transparent monitoring and evaluation processes.
While these are the essential standards that all Victorian organisations must meet, the way in which each organisation chooses to implement these requirements will vary depending on the size, resources and nature of their organisation.
For example, how a small cafe implements the positive duty might be very different to how a medium, suburban accounting firm, a regional TAFE or a large corporation does.
These standards were updated in November 2024 to align with updated thinking and research. There are specific minimum standards available in our practice guidelines that connect to specific areas of public life or protected attributes.
Standard 1: Knowledge and understanding
Organisations understand their obligations under the Equal Opportunity Act and have up-to-date knowledge about discrimination, sexual harassment and victimisation.
Expectations
- Organisations understand what constitutes discrimination, sexual harassment and victimisation and their positive duty obligations.
- Organisations can identify discrimination, sexual harassment and victimisation.
- Leaders know how to prevent, eliminate and respond to discrimination, sexual harassment and victimisation in their organisation and activities.
Actions may include:
- organisations familiarising themselves with what behaviour constitutes discrimination, sexual harassment and victimisation under the Equal Opportunity Act and their obligations, including through formal and informal education and training
- ensuring leaders, managers, and other relevant roles (such as contact officers or human resources staff) understand their responsibilities, including through formal and informal education and training
- gathering relevant information on current practices to prevent discrimination, sexual harassment and victimisation within organisational culture, processes and systems
- considering the personal characteristics of the organisation’s members and people the organisation interacts, and recognising that some are more at risk of discrimination, sexual harassment and victimisation
- thinking about whether there is evidence of systemic discrimination or intersectional discrimination because of multiple layered personal characteristics, for example, race, gender, sexual orientation, age and disability.
Standard 2: Policies and procedures
Discrimination, sexual harassment and victimisation are prevented through the development and implementation of effective policies and procedures.
Expectations
- Organisations undertake a risk assessment and take steps to prevent discrimination, sexual harassment and victimisation, and document these in relevant and tailored plans, policies and procedures.
- Organisations consult with relevant people and stakeholders on appropriate measures to eliminate discrimination, sexual harassment and victimisation, including identifying gaps in current policies and procedures.
- Relevant people are aware of, and can readily access, organisational policies and procedures related to discrimination, sexual harassment and victimisation.
Actions may include:
- analysing policies and procedures, and identifying any risks, weaknesses, issues and priorities
- completing risk assessments identifying the likelihood of different forms of discrimination, sexual harassment and victimisation occurring, and the potential harm that would flow to organisation members (and members of the community they engage with) if the risk was realised
- seeking direct feedback and consulting with relevant parties (e.g. workers and their representatives, consumers, stakeholders, affected members of the local community) to help identify realistic and appropriate actions measures to eliminate discrimination, sexual harassment and victimisation
- developing and documenting a prevention plan focused on discrimination, sexual harassment and victimisation
- developing or updating policies and changing practices aimed at preventing discrimination, sexual harassment, victimisation and vilification, and effective mechanisms to review and improve the policies
- regularly communicating to relevant people (such as staff, students or organisation members) about policies and processes available, including any relevant changes.
Standard 3: Organisational culture
Leaders foster a culture of equality, safety and respect.
Expectations
- Leaders model respectful behaviour, set clear expectations for the elimination of discrimination, sexual harassment and victimisation.
- Leaders encourage and support bystanders to speak up if they witness or hear about discrimination, sexual harassment and victimisation.
- Leaders are accountable for organisational change, prevention and response to discrimination, sexual harassment and victimisation.
Actions may include:
- communicating expectations of appropriate behaviour to all relevant people (such as staff, students and organisation members)
- ensuring all relevant people (such as clients and consumers) know their right to receive a non-discriminatory and inclusive service, and communicating any relevant policies to them
- encouraging leaders, including managers and supervisors, to role model respectful behaviour, for instance through codes of conduct or performance review processes
- encouraging and supporting bystanders to act safely to respond to discrimination, sexual harassment and victimisation
- anticipating and planning for resistance to any organisational changes.
Standard 4: Reporting and response
Discrimination, sexual harassment and victimisation are addressed consistently and confidentially to hold perpetrators to account and responses are victim survivor-centred and trauma-informed.
Expectations
- Organisations have an accessible and flexible reporting and complaints procedure informed by consultation with relevant parties and communicated effectively, with options to report anonymously where possible.
- Responses to reports and complaints about discrimination, sexual harassment and victimisation are fair, timely, culturally safe, trauma-informed, victim-centred and confidential.
- Complaints of discrimination, sexual harassment and victimisation are recorded, along with steps taken in response.
Actions may include:
- developing a fair and confidential reporting and complaints procedure in consultation with relevant parties and stakeholders with safe and accessible options for raising and resolving concerns that prioritises the complainants’ wellbeing
- ensuring all relevant people know how and where to make a complaint or report, and are supported to do so
- dealing promptly and effectively with any complaints
- considering when individual complaints should trigger organisational-level responses (such as improving systems and processes or providing additional training after a complaint is resolved)
- ensuring all relevant people provided with appropriate and adequate supports throughout the complaints process, including through identifying and avoiding victimisation
- recording complaints of discrimination, sexual harassment and victimisation and steps taken in response.
Standard 5: Continuous improvement
Outcomes and strategies are regularly reviewed and evaluated for continuous improvement.
Expectations
- Organisations regularly collect reporting and complaints data, and other relevant information, and assess it for trends and risk factors.
- Organisations regularly review and update policies and procedures that address discrimination, sexual harassment and victimisation.
- Organisations are transparent about trends, risk factors and lessons with relevant parties.
Actions may involve:
- regularly monitoring workplace culture, service delivery, complaints and reports data, and organisational knowledge of legal obligations in order to improve compliance and deal promptly with any issues that arise
- regularly reviewing and updating prevention plans with the input of relevant people/parties (e.g. workers and their representatives, consumers, stakeholders)
- being open and transparent with relevant people/parties on trends and lessons relating to measures to eliminate discrimination, sexual harassment and victimisation
- monitoring and adapting plans, policies and procedures relevant to discrimination, sexual harassment and victimisation.
Can someone make a complaint about an organisation that is not meeting its positive duty?
The Commission encourages people to let us know of any serious issues that affect a group of people, as we may decide to investigate the matter further and offer support to the organisation.
A person may report to the Commission by contacting our complaints/inquiry service.
The Commission may also investigate systemic issues of discrimination, sexual harassment and victimisation where the matter:
- raises an issue that is serious in nature, and
- relates to a class or group of persons, and
- cannot reasonably be expected to be resolved by a dispute resolution or an application to the Victorian Civil and Administrative Tribunal, and
- there are reasonable grounds to suspect that one or more contraventions of the Equal Opportunity Act have occurred.
When undertaking an investigation, the Commission will assess compliance with the Equal Opportunity Act and whether an organisation has complied with their positive duty, with reference to the five minimum standards for organisations. As part of this investigation function the Commission can apply to the Victorian Civil and Administrative Tribunal for an order requiring a person to provide information or documents.
What is the Commission's role in helping with the positive duty?
The positive duty encourages organisations to work with the Commission before any complaints are made.
We provide assistance in a number of ways, including:
- promoting awareness about the law and good practice
- provide education and consultancy services including:
- tailored organisational reviews
- compliance and best practice reviews of equal opportunity and human rights education programs
- working in partnership with organisations to encourage and support good practice
- reviewing policies and practices to give guidance.
- providing a free complaints service
- monitoring and enforcement.
You can contact us for more information about the positive duty or to discuss any aspects of your organisation’s equal opportunity plans.
Contact our Enquiry Line on 1300 292 153 (10am–2pm, weekdays), or email enquiries@veohrc.vic.gov.au