What has happened?

Much has been written about the issue of sexual harassment over the last few months and while it may seem obvious that harassment presents a safety risk, that is not the way it has been traditionally treated.

Broader community movements are fuelling momentum for change in the legal and regulatory landscape surrounding workplace sexual harassment, especially within the realm of work health and safety (WHS).

Whilst Australia’s safety laws have always required employers to identify and control physical and psychological health risks in the workplace, sexual harassment is now clearly recognised as a systemic risk with industry, environmental and individual risk factors present in all workplaces.

Safe Work Australia recently released its first comprehensive WHS guidance on preventing workplace sexual harassment. Whilst regulator guidance material does not have the same legal status as legislation, it does contribute to the overall state of knowledge regarding hazards, risks and controls and may be tendered as evidence in prosecutions against companies and individual officers and workers.

Background

Under current WHS (and OHS) laws, employers have a positive duty to take reasonably practicable steps to eliminate or minimise risks to their workers’ health, including risks associated with workplace sexual harassment.

However, the Australian Human Rights Commission’s report on the National Inquiry into Sexual Harassment in Australian Workplaces (the Report) found that a lack of express WHS regulation, Codes of Practice or guidelines dealing with sexual harassment as a specific WHS issue has resulted in difficulties arising for victims and employers. The Report, adding to the growing demand for addressing this inconsistency (see the recommendation made by the Boland Review in 2019), recommended, amongst other things, that guidelines on addressing the risk of sexual harassment in the workplace be developed with a view of informing the development of a Code of Practice.

Safe Work Australia’s Guideline

In January 2021 Safe Work Australia, acting on the Report’s recommendation, published national guidance material on preventing workplace sexual harassment (Guidance Material). The Guidance Material advocates for a more proactive role of employers in identifying, assessing and eliminating or minimising the risk of workplace sexual harassment occurring. Whilst all workplaces should review the entire Guideline Material, some of the key parts of it are below.

Identifying sexual harassment

The Guidance Material defines sexual harassment as any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated, or intimidated. This adopts the current legal definition from the Sex Discrimination Act.

It provides a list of factors of which employers should be aware that increase the potential for sexual harassment to occur in their workplace.

Those factors include:

low worker diversity; power imbalances; workplaces organised by a hierarchical structure; use of alcohol in a work context; workers being isolated or in restrictive spaces (like carers or in employer-provided accommodation); and worker interactions with clients, customers, or member of the public.

The Guidance Material also provides a list of proactive measures that may help employers identify whether sexual harassment is occurring in the workplace.

Some of those include:

having managers regularly walk-through and assess the physical work environment, particularly in areas with limited observation or areas that prevent workers maintain their personal space; carrying out confidential, anonymous worker surveys about workplace culture; identifying worker demographics to identify power imbalances in working relationships; and conducting training (including management training), to support the development and implementation of strategies for identifying and managing the risk of sexual harassment in the workplace.

Sexual harassment poses risks of both physical and psychological harm for workers. This means that control measures must be put in place to either eliminate or minimise the risk of it occurring, as far as it is reasonably practicable to do so. In the event of a complaint of sexual harassment to a safety regulator, employers should be prepared to be able to explain how they have, and are, proactively addressing the risk of sexual harassment in their workplace. Failing this, the employer will no doubt be the subject of statutory notice(s) (e.g. an improvement notice), and/or find itself the subject of a regulatory investigation and possible prosecution under either WHS or mainstream criminal laws.

The Guidance Material advocates a proactive approach to managing the risk of sexual harassment by:

examining existing control measures in health and safety management systems to prevent sexual harassment; implementing workplace behaviour policies and practices that promote respectful workplace culture for all levels of workers; applying appropriate consequences for sexual harassment misconduct; encouraging workers to report sexual harassment and providing a safe, confidential and clear means to do so; providing facilities and amenities that give privacy and security to disclosers; and ensuring the layout of the workplace provides good visibility of work areas and avoids restrictive movement.

These measures are in large part the same as the measures that should be adopted to manage exposure to risk under discrimination law. This means that if these measures are effectively implemented and managed employers will also be taking reasonable steps to comply with obligations under other laws.

Safe work systems and procedures

Every workplace should have health and safety management systems in place to keep workers safe. The Guidance Material suggests that policies and procedures should form part of your safety management system and be part of an overall sexual harassment preventative strategy. In particular, the system should:

define sexual harassment and recognise that sexual harassment is unlawful; make clear that sexual harassment will not be tolerated wherever and whenever it takes place; provide regular supervision and communication with workers; reinforce workplace policies and what behaviours are expected of workers at work-related events; set out the procedures for what a worker should do if they experience or see sexual harassment and how they can report it; act in a consistent manner when dealing with reports of sexual harassment; outline the consequences for breaching the sexual harassment policy; and clearly identify the processes the organisation will undertake when receiving a report and dealing with sexual harassment.

What should employers be doing now?

All workplaces should be taking proactive steps to assess whether their safety management system is adequate to identify and address sexual harassment risks in the workplace. It is highly likely that these measures are addressed in workplace policies already, however not referenced as part of the safety management plan or systems.

This means employers should take steps to:

Review and consider the Guidance Material; Identify any risk factors in your workplace which may allow for physical and psychological (including sexual harassment) risks to remain unaddressed; Review existing controls to ensure that any sexual harassment risks are adequately identified, assessed, and eliminated; Review your workplace policies dealing with sexual harassment; Provide training to workers and managers on how to identify and manage sexual harassment risks; Consult with workers and third parties to communicate workplace policies and procedures; and Take swift and effective action when reports of unwanted or offensive behaviour are made, including providing tools for self-management, anonymous reporting, bystander action and seek support both internal and external to the organisation. We can assist with undertaking this review and providing training as required including training on grievance procedures and bystander intervention.

John Makris Partner +61 2 9169 8407 [email protected]

Dominic Fleeton Partner +61 3 9958 9616 [email protected]

Erica Elliott Special Counsel +61 2 9169 8409 [email protected]

George Stent Lawyer +61 2 9169 8421 [email protected]