Understand your work health and safety responsibilities

Employer and business obligations

Everyone has a right to a safe and healthy workplace, free from sexual harassment.

Businesses have the primary responsibility for ensuring the health and safety of everyone in their workplace under NSW’s work health and safety (WHS) laws. This includes a positive duty to take all reasonable steps to eliminate or minimise both physical and psychological risks to health and safety including the risk of sexual harassment. 

Workers and ‘others’ at a workplace which may include clients, customers, suppliers or visitors, also have duties under NSW’s WHS laws. They include an obligation to take reasonable care not to harm others’ health and safety and to comply with reasonable instructions by a business in relation to WHS issues.    

Officers of corporations are also required to take reasonable steps to ensure the business complies with its WHS obligations.
 

Your positive duty to prevent sexual harassment

A positive duty to prevent workplace sexual harassment means businesses have a legal obligation to take proactive and meaningful action to comply with this duty.

Under NSW WHS laws, NSW businesses have a positive duty to eliminate or minimise risks to health and safety, so far as is reasonably practicable. Sexual harassment is a type of psychosocial hazard. Businesses must proactively manage both psychosocial and physical risks and hazards.

This is separate, and in addition to, the positive duty under the federal Sex Discrimination Act to eliminate workplace sexual harassment.

From December 2023 the Australian Human Rights Commission can enforce compliance by organisations and businesses with this positive duty. Visit the Australian Human Rights Commission website for more information.

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

Regardless of the positive duty to prevent sexual harassment, any occurrence of workplace sexual harassment is unlawful. Businesses can be held responsible for the actions of workers, agents and third parties if sexual harassment occurs in your business.

Get advice from SafeWork NSW

SafeWork NSW is the state’s work health and safety regulator. 

SafeWork NSW can:

• provide advice to workplaces
• monitor compliance
• inspect workplaces
• prosecute serious breaches of WHS laws.

SafeWork NSW can provide free advice and support to help workers, businesses and industry maintain a safe workplace and meet their WHS duties.

You can request a free advisory visit if you have less than 50 staff or a safety workshop for business groups.

Learn more about SafeWork NSW’s free advisory visits and workshops.

Resources

• Work Health and Safety Act 2011 - NSW Government
• Work Health and Safety Regulation 2017 - NSW Government
• Sex Discrimination Act 1984 - Australian Government
• NSW Anti-discrimination Act 1977 - NSW Government
• Positive duty explained (PDF 147.79KB) - SafeWork NSW