Legal Alert

EMPLOYERS TAKE NOTE – SEXUAL HARASSMENT IS UNDENIABLY A WORK HEALTH AND SAFETY MATTER

Authors: Sarah Younis & Amy Zhang

In the last few months, there have been a number of developments at the Commonwealth and State levels regarding sexual harassment and work health and safety. These developments make it clear that employers need to consider sexual harassment as a work health and safety issue, and ensure that steps are taken to prevent and address sexual harassment in the workplace.

In this alert, we summarise the key developments in the last few months that employers need to be aware of regarding sexual harassment and work health and safety.

Safe Work Australia Guide

Under Australia’s model Work Health and Safety (“WHS”) laws, employers must proactively manage risks to health and safety arising from a workplace. Safe Work Australia recently released the “Guide: Preventing workplace sexual harassment” (“Guide“), which is the first detailed WHS guidance in Australia to focus on preventing and responding to sexual harassment.

The purpose of the Guide is to assist employers to identify the factors in their business that increase the risk of sexual harassment, and to minimise or eliminate those risks so far as reasonably practicable. This requires a pragmatic and comprehensive review of the organisations’ operations, including a consideration of its physical work environment, workplace systems and employment policies.

The Guide was developed in response to recommendations made by the Australian Human Rights Commission in its “Respect@Work: Sexual Harassment National Injury Report (2020)” (“Report”).

Actions identified by the Guide to assist employers to reduce the risk of sexual harassment include:

1. Identify factors that increase the risk of sexual harassment: such as power imbalances, low worker diversity or use of alcohol in a work context. These factors can be identified by, for example, a walk-through and assessment of the physical working environment or by observing the culture of the workplace to understand whether sexual harassment is accepted as normal behaviour;
2. Take a pro-active approach to controlling those risks: such as addressing unwanted or offensive behaviour early, encouraging the reporting of sexual harassment and implementing appropriate workplace behaviour policies;
3. Provision of adequate information, training and supervision on sexual harassment: such as ensuring that training, instruction and information is provided to workers at all levels of an organisation, is easily accessible and readily understood. Some examples of disseminating information include displaying the policy on notice boards, publishing the policy on the staff intranet or emailing it to workers and distributing brochures.
4. Conduct regular reviews of actions taken to eliminate or minimise the risk of sexual harassment: the purpose of the review is to consider whether the steps taken by the employer can be improved by implementing new control measures, or whether changes to workplace policies or additional training is necessary; and
5. Adopt an appropriate response to reports of sexual harassment: the measures provided to properly deal with a report of sexual harassment include; acting promptly and ensuring the safety of the workers involved, clearly communicating the response process to all parties involved, actively protecting all individuals involved from victimisation, maintaining the confidentiality and ensuring all steps and decisions are documented and information is stored securely.

A link to the Guide can be found here.

To date, no prosecutions have been brought for non-compliance with the model WHS laws in relation to sexual harassment. However, the recent release of the Guide can certainly be relied upon by State and Territory Regulators in proceedings against an employer for failing to prevent sexual harassment in the workplace.

Due to these recent legal developments, employers are encouraged to:

1. review workplace behaviour policies and complaint handling procedures to ensure that risks of sexual harassment are properly addressed and consider whether amendments are necessary;
2. provide workers with training and information about these policies and procedures to prevent sexual harassment, including via the induction process and regularly thereafter, and keep records of their attendance. This training should be provided to workers at all levels of an organisation, including management, and be easily accessible; and
3. take allegations of sexual harassment seriously and conduct thorough investigations of complaints in a timely and fair manner.

If you require any assistance with drafting, reviewing, training or enforcing sexual harassment policies and procedures in accordance with the Guide, please do not hesitate to contact our team of specialists.

Developments in Victoria

The Victorian Government has announced that it will establish a ministerial taskforce on workplace sexual harassment to strengthen Victoria’s WHS framework to address the issue.

The key initiatives of the taskforce will be to:

• develop a mandatory incident notification scheme where employers must notify WorkSafe Victoria of workplace sexual harassment; and
• create a memorandum of understanding between WorkSafe Victoria and the Victorian Equal Opportunity and Human Rights Commission (“Commission”) to develop a unified approach to manage workplace sexual harassment. This will involve WorkSafe and the Commission sharing information, referring enquiries and complaints to each other, and collaborating on inspections and educational activities.

The taskforce will deliver their advice to the Victorian government later this year. It remains to be seen whether other States and Territories will follow Victoria’s lead to seek to impose mandatory notification of workplace sexual harassment incidents.

Proposed changes to the Sex Discrimination Act 1984 (Cth) and Fair Work Act 2009 (Cth)

The Federal government recently announced that it will amend the Sex Discrimination Act and Fair Work Act to strengthen protections against sexual harassment in the workplace.

Key changes to the Fair Work Act and the Sex Discrimination Act include:

• politicians, judges and state public servants to be liable for and protected from sexual harassment in their workplace;
• sexual harassment to be included as grounds, or a valid reason, for dismissal;
• definition of “serious misconduct” in the Fair Work Act to include sexual harassment
• a “stop bullying order” to be available in the context of sexual harassment; and
• accepted complaints to the Human Rights Commission that occurred less than 24 months ago cannot be terminated on the grounds of time.

The series of proposed legislative changes will be introduced into Federal Parliament later this year.

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