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.
Given these recent developments, employers should now:
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.
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:
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:
The Guide sets out a number of steps that PCBUs can take to identify risks of sexual harassment. These include:
The Guide recommends a proactive approach to managing risks of sexual harassment by implementing control measures, such as:
The Victorian Government has announced the establishment of a ministerial taskforce on workplace sexual harassment. The key initiatives of the taskforce include:
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