INSIGHT

New WHS guidance on preventing workplace sexual harassment released

By Melanie Jasper, Alisha Bond, Emma Boogaerdt
Employment & Safety

An outline of practical steps 4 min read

Guidance released earlier this week by Safe Work Australia is designed to assist persons conducting a business or undertaking (PCBUs) in preventing, and responding to, workplace sexual harassment. The guidance outlines practical steps PCBUs can take to address this important issue. 

Key takeaways

  • Workplace sexual harassment can have a profound impact on victims, their family and friends, bystanders and co-workers.
  • As a recognised workplace hazard, managing the risks of sexual harassment forms part of the duty of a PCBU to eliminate and minimise risks to health and safety so far as is reasonably practicable.
  • The National Guidance Material 'Preventing workplace sexual harassment' released by Safe Work Australia (Guidance) outlines practical measures PCBUs can take to identify and assess the risk of workplace sexual harassment, help prevent it and respond appropriately if it occurs.
  • Even though the Guidance is based on the Model Work Health and Safety Laws (Model Laws), the concepts are readily transferable to other jurisdictions.
  • While the Guidance is not legally binding, it is likely to be given close consideration by a court in a WHS prosecution, or as part of a complaint of sexual harassment against an employer, such as under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act).

Addressing some key questions

What is sexual harassment, how prevalent is it and what are the impacts?

Sexual harassment is defined as any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

In June 2018, the Australian Human Rights Commission was tasked with undertaking the National Inquiry into Sexual Harassment in Australian Workplaces (Inquiry). The extensive findings of the Inquiry were released in a 2020 report and included that:

  • 33% of Australians experienced workplace sexual harassment in the five years to 2018.
  • Workplace sexual harassment is more prevalent amongst certain groups including women, Aboriginal and Torres Strait Islander people, people with a disability, and people who identify as LGBTI+.
  • Sexual harassment can cause physical and psychological harm to the victim and anyone witnessing the behaviour. The severity of the impact can vary, and it can have significant social and economic costs for individuals, their family and friends, employers and the wider community.

The Inquiry made 55 recommendations, including that WHS ministers develop guidelines on sexual harassment with a view to informing the development of a Code of Practice on the topic.   

What are the applicable laws?

The Guidance, which implements the Inquiry's recommendation to develop guidelines, is designed to assist PCBUs in meeting their duty under WHS law to eliminate or minimise risks to health and safety of workers and other persons so far as reasonably practicable. As an identified hazard, PCBUs must address workplace sexual harassment as part of this duty.

Under the Model Laws, officers also have a duty to take reasonable steps to ensure sufficient resources are available and used, and processes are in place, to eliminate or minimise risks of sexual harassment.

In addition to being covered by WHS law, workplace sexual harassment is unlawful under the Sex Discrimination Act and prohibited under state and territory anti-discrimination laws. 

What does the Guidance say? 

The Guidance outlines comprehensive and practical steps PCBUs can take at each stage of the risk management process.

In relation to hazard identification and risk assessment, the Guidance suggests collecting data in a variety of ways including talking to workers, spending time in the workplace, conducting exit interviews, reviewing industry data and confidential surveys. This approach addresses the fact that reporting rates are typically low and, therefore, formal reporting may not be accurate.

In terms of determining control measures, PCBUs should consider:

  • how the physical work environment can be made safe (eg lighting, privacy of facilities);
  • implementing a workplace policy that is easily accessible and includes a clear statement that sexual harassment will not be tolerated;
  • providing training to workers at all levels of the organisation; and
  • encouraging reporting by offering a range of user-friendly ways to report, and training key workers in how to receive reports and give support and advice.

The Guidance suggests that controls be reviewed at regular intervals, as well as after a report of sexual harassment has been addressed, when a significant change to the workplace has been introduced, or when feedback (from workers or their representatives) is received that the controls are ineffective.

Is the Guidance binding? 

While the Guidance has no legislative effect, the fact that it has been developed by the Australian statutory body tasked with developing national policy relating to WHS means a court is likely to give it close consideration when examining the conduct of a PCBU (or an employer for the purposes of the Sexual Discrimination Act).

Actions you can take now

  • Use the Guidance to review your organisation's approach to managing the risk.
  • Where appropriate based on that review, design and implement any necessary improvements to your workplace sexual harassment risk-management processes.
  • Ensure that the existence of the Guidance, and its content, is widely known within your organisation, including at the officer level.