Sexual harassment: now squarely a Work Health and Safety issue

Safe Work Australia has released new national guidance on preventing and responding to workplace sexual harassment (Guide). The release of the Guide is just one of a number of significant developments in this area. It coincides with announcement of an independent inquiry into the culture of Commonwealth parliamentary workplaces in response to recent events, and the establishment by the Victorian Government of a ministerial taskforce on workplace sexual harassment.

The Guide was developed in response to recommendations made by the Australian Human Rights Commission in its “Respect@Work: Sexual Harassment National Inquiry Report (2020)”. The Report found that, despite workplace sexual harassment being unlawful under anti-discrimination legislation, it remained “prevalent and pervasive” in Australian workplaces. The Report recommended a shift from the current “reactive” approach to sexual harassment, to a “proactive” model; that is, requiring employers to take positive action to prevent it from occurring, including by formally recognising workplace sexual harassment as a work health and safety issue.

What should employers do?

Given these recent developments, employers should now:

• review workplace behaviour and WHS policies, and current workplace practices, to ensure that risks of workplace sexual harassment are identified and appropriately addressed, and that relevant due diligence/officer obligations extend to workplace sexual harassment;
• ensure all workers are aware of and understand these policies and their rights and obligations in respect of sexual harassment;
• given the prevalence of remote working, ensure that all “workplaces” are included in such reviews;
• ensure that internal reporting processes are capturing accurate and timely information about incidents. This is in order to meet the likely requirements of mandatory external reporting, particularly in Victoria.

Duties under WHS laws

The Guide characterises sexual harassment as a workplace hazard, known to cause psychological and physical risks to health and safety.

Under WHS laws, persons conducting a business or undertaking (PCBUs) have a duty to eliminate or minimise such risks so far as is reasonably practicable. Equivalent obligations exist in Victoria and Western Australia where the WHS model laws are not in place. 

The Guide sets out a risk management process which, as with other safety risks, involves identifying and assessing the risks, implementing control measures to eliminate or minimise those risks, and regularly reviewing control measures to ensure ongoing effectiveness.

Risks outside the “traditional” workplace

The Guide emphasises that the risk of sexual harassment exists, and can in fact be more significant, outside the “traditional” workplace. Under WHS laws, a “workplace” is defined broadly to mean a place where work is carried out, including any place where a worker goes, or is likely to be, while at work.

Sexual harassment can therefore occur:

• where a worker is working remotely, including from home (a practice which has become more prevalent due to the COVID-19 pandemic);
• during work-related activities such as conferences, training or work-related social activities; or
• by phone, email or online.

The Guide notes that where work is performed remotely, including from home, this can provide an opportunity for covert sexual harassment to occur, either online or by phone, and that attendance at conferences and work-related social events also give rise to an increased risk of sexual harassment.

Other factors identified as having the potential to increase the likelihood and risks of workplace sexual harassment include:

• low worker diversity;
• power imbalances or hierarchical structures; and
• a workplace culture that tolerates sexual harassment, including the acceptance of lower level forms of harassment.

Risk identification and control measures

The Guide sets out a number of steps that PCBUs can take to identify risks of sexual harassment. These include:

• assessing physical working environments (for example, areas where there is limited natural surveillance or areas that restrict movement) and the online working environment (for example, the use of social media for work purposes, and how workers interact with one another and with third parties online);
• considering work systems and practices to identify risks of exposure (for example, where workers perform after-hours work with minimal supervision, work in restrictive spaces or in isolated locations, or are required to have regular contact with third parties such as customers, clients or suppliers); and
• assessing workplace culture, including by observing or by conducting confidential anonymous worker surveys.

The Guide recommends a proactive approach to managing risks of sexual harassment by implementing control measures, such as:

• providing safe physical and online working environments (for example, ensuring the layout of workplaces provide good visibility and minimise restrictive movement);
• providing safe work systems and procedures (for example, regular supervision and communication with workers, particularly when working remotely or from home and, for work-related social events, reinforcing workplace policies and expected behaviours);
• implementing workplace policies that set clear expectations about workplace behaviours and providing regular training to all workers including managers; and
• encouraging workers to report sexual harassment and providing safe, confidential and clear avenues for them to do so.

Developments in Victoria

The Victorian Government has announced the establishment of a ministerial taskforce on workplace sexual harassment. The key initiatives of the taskforce include:

• consulting on a mandatory incident notification scheme to require employers to notify WorkSafe of workplace sexual harassment;
• strengthening the occupational health and safety framework to address sexual harassment;
• developing a new memorandum of understanding between WorkSafe and the Victorian Equal Opportunity and Human Rights Commission to create a unified approach to sexual harassment.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).