“Positive Feeling of Actual Apprehension”: Finally, a court defines the threshold for reporting workplace psychosocial incidents under safety legislation

A recent decision of the ACT Magistrates Court in Agius v Monaro Mix Specified Concrete Pty Ltd [2026] ACTMC 10 (Decision) has provided important clarity around the operation of section 37A of the Work Health and Safety Act 2011 (ACT) (WHS Act). With reporting obligations harmonised across most jurisdictions (except Victoria) and Safe Work Australia amending the model laws to introduce section 37A,the Decision offers important guidance on when psychosocial incidents need to be reported under safety legislation across Australia.

In the Decision it was held that a PCBU does not need to report every allegation of sexual assault under notification laws that came into effect in June 2023. The result was a not guilty verdict for an employer charged with a suspected breach of section 38 of the WHS Act.

The ACT became the first jurisdiction to add sexual assault incidents to the list of notifiable incidents under the WHS Act. This is significant as a PCBU has a duty to report notifiable incidents to the relevant regulator immediately upon becoming aware of them.

The new section 37A definition of “sexual assault incident” means that a PCBU is required to report “an incident (including a suspected incident) in relation to a workplace that exposes a worker or any other person at the workplace to sexual assault.”

In the Decision, the Court was asked to consider whether Monaro Mix Specified Concrete Pty Ltd (Monaro Mix) had breached its reporting obligations by failing to notify WorkSafe ACT of a suspected sexual assault incident.

The charge arose from a complaint made on 20 May 2024 by a recently hired truck driver on the day her employment was terminated. The employee told her manager that a co-worker training her had "brushed past" her breasts and that she had to tell him to step back because he was in her personal space.

The manager considered the complaint raised serious allegations and relayed the allegations to the general manager. The general manager asked the manager to record the incident but did not submit a notifiable incident report until over a month later, after WorkSafe ACT inspectors visited the workplace. The general manager said he was not aware that sexual harassment had to be reported, and in any event, considered the allegation vexatious.

The prosecution alleged that both managers were aware of a serious allegation of sexual touching, that this constituted a sexual assault incident (regardless of whether it was vexatious), and that allowing PCBUs to investigate allegations before reporting to the regulator would defeat the purpose of the provisions.

The defence case was that the facts communicated by the complainant could not give rise to a suspected sexual assault incident and that neither manager had in fact apprehended that deliberate touching had occurred.

The Court analysed section 37A of the WHS Act and took note that this was the first time the provision had been considered in a contested hearing.

On the meaning of ‘sexual assault’, the Court confirmed it should be given its ordinary meaning and extends to deliberate sexual touching without consent. Accidental or incidental physical contact, however unwelcome, does not constitute sexual assault.

On the meaning of “suspected incident”, the interpretation of “suspicion” from High Court authority requires a “positive feeling of actual apprehension or mistrust”.[1] That is, it requires more than mere idle wondering. The suspicion need not be reasonably based, and a slight opinion will suffice. Once the relevant suspicion is held, the obligation to notify arises.

Importantly, the Court confirmed that the amendments were not intended to capture sexual harassment within the definition of sexual assault.

In arriving at the Decision, the Magistrate made the following findings:

• both managers knew that the employee had complained that the co-worker had “brushed past” her breasts and been in her personal space; and
• that description alone suggested the contact was not deliberate.

This might suggest disregard for personal space or a physically overbearing presence, but it did not describe deliberate touching.

The Magistrate found it was unclear what either manager actually thought of the complaint at the time it was made. They may have understood it as a complaint about personal space boundaries, as an allegation of deliberate touching, or they may not have known what the employee was trying to convey.

The Magistrate rejected the prosecution's submission that every allegation of sexual assault needs to be notified and stated that the central question is whether the PCBU in fact held a positive feeling of actual apprehension that a worker had been exposed to sexual assault.

The mere fact that an allegation has been made will not necessarily lead to the PCBU forming the necessary suspicion to trigger the reporting obligation. However, the Magistrate acknowledged that it may be difficult for a PCBU to resist that proposition where an allegation is “seriously made”. This was not such a case, given the lack of clarity in what was alleged and the circumstances in which the complaint arose.

On that basis, the Magistrate was not satisfied beyond reasonable doubt that Monaro Mix was aware of a notifiable incident within the meaning of section 38 of the WHS Act, and the case was dismissed.

This Decision confirms that while the notification threshold under section 37A is deliberately low, there is still some suspicion that must be satisfied to trigger the obligation. A PCBU must have a positive feeling of actual apprehension that a worker has been exposed to sexual assault before the duty is enlivened.

That said, PCBUs cannot delay notification to conduct their own investigation into the merits of an allegation, the obligation arises immediately once the suspicion is formed.

Context will matter in assessing whether that point has been reached, and where a complaint is ambiguous as to whether deliberate conduct is being alleged, the duty may not be triggered.

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This article was co-authored by Kevin Jarrett, an Associate, and Tom Cuijpers, a Lawyer, both in our Perth office.

References

[1] Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation.

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