Victoria’s positive duty, and the manager’s part in it

The duty in the Act’s words

Section 15 of the Act sets the duty. The duty falls on a person who has a duty under Part 4, 6 or 7 of the Act not to engage in discrimination, sexual harassment or victimisation, and section 15(2) says that person “must take reasonable and proportionate measures to eliminate that” conduct “as far as possible”.

The Act is number 16/2010, and the version in force on Victoria’s legislation site is version 032, in force from 15 April 2026. The Commission adds that “Victoria is unique in having a positive duty”, and compares it with occupational health and safety laws, which require employers to take steps so that injuries don’t happen.

Who carries it, and for whom

Under section 15(1), the duty is carried by every person with a duty under Part 4, 6 or 7 of the Act not to engage in discrimination, sexual harassment or victimisation. The Commission says those duty holders include employers, providers of accommodation, education, or goods and services, and clubs and sporting organisations. An organisation has obligations as an employer and in how it deals with the community, so an employer’s duty runs to its clients as well as its staff. The duty is aimed at protecting groups such as employees, students, customers, consumers and club members from harm.

Proportionate to the organisation

Every duty holder must meet the minimum standards, but what each must actually do varies with its size and resources, and the Commission says “bigger organisations will be expected to do more than smaller ones.” Section 15(6) of the Act sets the factors that must be considered in deciding whether a measure is reasonable and proportionate: the size of the business or operations, their nature and circumstances, the person’s resources, the person’s business and operational priorities, and the practicability and cost of the measures.

That leaves room to choose measures, and the Commission notes that smaller organisations with fewer resources can still take a range of practical steps.

The five minimum standards

Standards 1 to 3 are about prevention, and standards 4 and 5 about responding when something has happened. The Commission updated them in November 2024. The middle column is each standard as the Commission words it; the right-hand column is one expectation or suggested action from the Commission’s list for it, chosen for the person running a team.

The VEOHRC’s five minimum standards, quoted, with a selection from its expectations and actions

Standard	In the Commission’s words	From its list
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.”	“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”
2. Policies and procedures	“Discrimination, sexual harassment and victimisation are prevented through the development and implementation of effective policies and procedures.”	“Relevant people are aware of, and can readily access, organisational policies and procedures related to discrimination, sexual harassment and victimisation.”
3. Organisational culture	“Leaders foster a culture of equality, safety and respect.”	“encouraging leaders, including managers and supervisors, to role model respectful behaviour, for instance through codes of conduct or performance review processes”
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.”	“Complaints of discrimination, sexual harassment and victimisation are recorded, along with steps taken in response.”
5. Continuous improvement	“Outcomes and strategies are regularly reviewed and evaluated for continuous improvement.”	“Organisations regularly review and update policies and procedures that address discrimination, sexual harassment and victimisation.”

Standard 3 is the one closest to coaching. Its expectations include that “Leaders encourage and support bystanders to speak up if they witness or hear about discrimination, sexual harassment and victimisation.” And its suggested actions name performance review processes as one place where leaders can role model respectful behaviour, which is where it touches the guide to managing underperformance.

Sexual harassment: a separate guideline with six standards

For workplace sexual harassment, the Commission has a guideline of its own, dated August 2020, which gives six minimum standards employers must meet to comply with the positive duty to eliminate sexual harassment. It is written for small, medium and large organisations, and the Commission says the guideline “may be considered in judicial proceedings when deciding whether employers have complied with the law.”

So two sets of standards are in play, with different dates: five for the positive duty as a whole (November 2024) and six in the sexual harassment guideline (August 2020).

When the Commission looks into it

Anyone can report a serious issue affecting a group of people to the Commission’s complaints and inquiry service. The Commission may investigate systemic discrimination, sexual harassment or victimisation where the matter is serious, relates to a class or group of people, can’t reasonably be expected to be settled through dispute resolution or a Victorian Civil and Administrative Tribunal application, and there are reasonable grounds to suspect the Act has been contravened.

In an investigation it assesses compliance with reference to the five minimum standards, and it can ask the Victorian Civil and Administrative Tribunal to order a person to provide information or documents. The duty also encourages organisations to work with the Commission before any complaint is made.

A Victorian employer can carry a second, Commonwealth duty at the same time: the positive duty in the Sex Discrimination Act, which applies to all employers and persons conducting a business or undertaking in Australia that have obligations under that Act.