Positive duty

Your WHS Duties

Under the WHS legislation all person’s conducting a business or undertaking (PCBU’s) must ensure workers and others are not exposed to risks or hazards to their physical and psychosocial health and safety in the workplace. Sexual harassment and discrimination are types of psychosocial hazards. A PCBU must take meaningful and proactive action to eliminate, or minimise risks to health and safety so far as is reasonably practicable.

Workplace Sexual Harassment and Discrimination

Workplace sexual harassment and discrimination continue to be a prevalent and serious issue in Australian workplaces. The Respect@Work report (2022) commissioned by the Australian Federal Government found one in three workers had experienced workplace sexual harassment in the previous five years and workers felt employers were not doing enough to prevent the problem.

The Positive Duty

To address these issues a positive duty requirement has been introduced under the federal Sex Discrimination Act 1983 (Cth) 2022, requiring all PCBU’s take meaningful and proportionate measures to prevent and eliminate unlawful conduct in the workplace, and in connection with work. The Australian Human Rights Commission (AHRC) has also been granted new powers to conduct enquiries and enforce the positive duty.

In the Northern Territory the Positive Duty came into force on 2nd January 2024, with a transitional period allowing PCBU’s to understand and prepare for the new laws ending on 6th January 2025.

Relevant Unlawful Conduct

The positive duty requires employers and organisations of all sizes, including sole traders, small, medium and large enterprises, so far as is reasonably practicable, eliminate the following ‘relevant unlawful conduct’ from the workplace: sexual harassment, harassment on the ground of sex, discrimination on the ground of sex, creating a hostile work environment on the ground of sex; and related acts of victimisation.

Recommended action

As with any other WHS hazard, it is recommended PCBU’s:

• adopt a risk management approach to identify, assess and control risks and hazards
• consult with workers to find out what they need for their health, safety and wellbeing at work
• develop policies and procedures to prevent and eliminate sexual harassment and discrimination and regularly communicate them to everyone in the workplace
• regularly assess risks and review the controls in place
• promote the benefits of a safe, diverse and gender equal workplace

Guidance Materials

‘Codes of practice’ offer authoritative and practical guidance in relation to standards to meet in order to achieve compliance regarding WHS laws. The codes of practice that have been approved in the Northern Territory are available for free download from the forms and resources section of the NT WorkSafe website, including:

• Managing psychosocial hazards at work – Code of practice
• Sexual and gender-based harassment – Code of practice

To also assist PCBU’s in complying with the positive duty a range of materials have been published by the Australian Human Rights Commission and the Respect@Work platform.

PCBU’s should familiarise themselves with the codes of practice and available guidance materials as they are indicative of what will be considered when assessing if an employer has met its legal obligations to satisfy the positive duty requirements.

The role of NT Worksafe in regard to the positive duty

NT WorkSafe enforces the positive duty under NT WHS laws and the Australian Human Rights Commission enforces the positive duty under the federal Sex Discrimination Act.

NT WorkSafe works with Territory businesses and workers by helping businesses and workers meet their WHS duties through workplace visits, advice, audits and inspections. NT Worksafe may respond to safety concerns in relation to workplace psychosocial matters, including sexual harassment and discrimination by:

• guidance in relation to options available to address sexual harassment including referring to worker’s compensation, the AHRC, the Fair Work Commission or the NT Anti-Discrimination Commission;
• providing options for further support; and
• making enquiries to determine if the PCBU has met its obligations under the WHS laws, providing advice and guidance to PCBU’s, inspecting workplaces and enforcing WHS laws.