Positive Duty Under the Spotlight: AHRC Inquiries and Complaints on the Rise

Australia’s workplace sexual harassment framework continues to evolve, with the Australian Human Rights Commission (AHRC) increasingly turning its attention to whether employers are proactively meeting their obligations under the positive duty provisions of the Sex Discrimination Act 1984 (Cth). Recent comments from Sex Discrimination Commissioner, Anna Cody, indicate that regulatory scrutiny is increasing, and employers who take a reactive approach to workplace sexual harassment may find themselves exposed.

Key Developments

Since the positive duty provisions became enforceable in December 2023, the AHRC has received 143 complaints alleging breaches of the positive duty. The Commission is currently conducting 6 formal inquiries into employer conduct, while monitoring a further 18 organisations voluntarily.

The formal inquiries reportedly involve employers operating in sectors including retail, financial services, information and communications, media and transport. While the identities of those employers remain confidential, the activity demonstrates the AHRC’s growing willingness to assess whether employers are taking sufficient steps to prevent workplace sexual harassment and related unlawful conduct.

The positive duty under section 47B of the Sex Discrimination Act 1984 (Cth) requires employers to take “reasonable and proportionate measures” to eliminate, as far as possible:

• sex discrimination;
• sexual harassment;
• sex-based harassment;
• hostile workplace environments on the ground of sex; and

The duty shifts the focus away from responding to complaints after the fact and instead shifts towards preventing unlawful conduct before it occurs.

Complaints Continue to Increase

The AHRC has reported a significant increase in workplace sex discrimination and sexual harassment complaints in recent years.

As well as the 143 positive duty complaints, the AHRC has received an increasing number of sex discrimination in employment complaints, including:

• 395 complaints between 1 July 2023 and 30 June 2024;
• 442 complaints between 1 July 2024 and 30 June 2025; and
• 545 complaints between 1 July 2025 and 30 June 2026.

The Fair Work Commission (FWC) has also reported a steady increase in sexual harassment applications since the Respect@Work reforms were implemented through the Secure Jobs, Better Pay Act 2022 (Cth).

According to Commissioner Cody, the rise in complaints reflects both increased awareness of workplace rights and improved access to support services for workers seeking to bring claims.

What Happens if the AHRC Starts an Inquiry?

The AHRC has consistently stated that its preferred approach is collaborative rather than punitive. Where concerns about an employer’s compliance with the positive duty are raised, the AHRC may initially seek information and work voluntarily with the organisation to improve policies, systems and workplace practices. The 18 employers currently being monitored are reportedly participating in this cooperative process.

However, if the AHRC forms a reasonable suspicion that an employer is failing to comply with the positive duty, it may commence a formal inquiry. During that process, the Commission can:

• request information and documents;
• make findings regarding compliance;
• issue recommendations;
• service compliance notices; and
• seek enforcement through the Federal Court or Federal Circuit and Family Court of Australia if necessary.

The first positive duty case was brought under section 527D of the Fair Work Act 2009 (Cth) and resulted in an order of $90,000 in damages and penalties from the Federal Circuit and Family Court in March 2026.[1] Commissioner Cody has described the positive duty framework as a “game changer” for workplace regulation.

Why This Matters for Employers

Employers must be able to demonstrate that their preventative measures are meaningful, effective and tailored to workplace risks. The positive duty requires more than simply maintaining a policy or requiring employees to complete online compliance modules. Employers should be actively assessing workplace risks, engaging leadership, educating workers, monitoring workplace culture and implementing appropriate reporting and response mechanisms.

For retail, hospitality, food services and other customer-facing industries, where workplace sexual harassment risks can be heightened, proactive compliance is likely to remain a key area for regulatory focus.

Key Takeaways

The AHRC’s increased inquiry activity sends a reminder that compliance with the positive duty is no longer simply a matter of best practice. Organisations should consider whether their current framework extends beyond policies and training to include genuine risk management measures capable of demonstrating compliance with the positive duty.

Want to Know More?

If you would like assistance reviewing your organisation’s positive duty obligations, conducting a workplace risk assessment, updating workplace policies or delivering effective sexual harassment training, please call NRA Legal for a confidential conversation on 1800 572 679.

[1] Mejia v Capital City Cafe-Bar [2026] FedCFamC2G 468 (26 March 2026).