The focus on sexual harassment in the workplace, particularly as a risk to the psychological health of employees, has continued in 2021.
Australian Human Rights Commission report into workplace sexual harassment
The Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces published in March 2020 (Respect@Work Report), found that whilst the Model Work Health and Safety Laws impose a positive duty on employers to eliminate or manage hazards and risks to workers’ health there is no express prohibition on sexual harassment in the workplace.
The Report made 55 recommendations, including that the Model WHS Regulation be amended to explicitly deal with psychological health, to be partnered with a Code of Practice addressing sexual harassment.
Federal Government response
In April 2021 the Federal Government released “A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces” (Government Response) in response to the Safety@Work Report.
The Government agreed with recommendation 35 of the Safety@Work Report that the Model WHS Regulation should be amended to deal with psychological health and that guidelines be drafted with a view to creating a Code of Practice dealing with sexual harassment. The Government Response specifically noted that Safe Work Australia had released guidance material (discussed below) and that WHS Ministers were due to finalise a review of the Model WHS Laws in mid-2021, which will involve consideration of amendments to deal with psychological health (as recommended in the 2018 Boland review and discussed in an earlier article).
However, the Government did not agree in full to introducing a positive duty in the Sex Discrimination Act 1984 (Cth) on employers to take reasonable measures to eliminate sexual harassment and sex discrimination. The Government stated that such a positive duty already exists in the Model WHS Laws to ensure so far as reasonably practicable that employees are not subject to risks to their health and safety.
Safe Work Australia National guidance material on preventing workplace sexual harassment
In January 2021 Safe Work Australia released ‘Preventing workplace sexual harassment: National guidance material’ (Guide) which provides information for persons conducting a business or undertaking (PCBUs) on preventing and responding to sexual harassment in the workplace.
Given that workplace sexual harassment creates a risk to psychological health, PCBUs have a duty under WHS Laws to eliminate, or if not reasonably practicable, to minimise risks to the health and safety of workers so far as is reasonably practicable. Therefore PCBUs must take a risk management approach to the risk of sexual harassment by identifying, assessing and controlling the risks.
The Guide notes that employers should not only rely on formal reports of sexual harassment, referring to a 2018 study which found that only 17% of workers who experienced sexual harassment made a report. Instead, PCBUs should look to identify hazards including by reviewing the physical work environment, the online working environment and the workplace culture (e.g. through anonymous surveys) in addition to identifying trends in data (such as turnover rates, sick leave and grievance complaints) and information gathered in exit interviews.
In addition, hazard identification relies on communication and PCBUs have an obligation to consult with workers when identifying hazards, assessing risks and making decisions about ways to eliminate or minimise those risks.
Factors that can increase the likelihood of sexual harassment include:
- low worker diversity (e.g. the workforce is dominated by one gender, age group, race or culture);
- hierarchical workplaces;
- over-representation of one gender in management or senior leadership positions;
- a workplace culture that supports or tolerates sexual harassment; and
- poor understanding among workplace leaders of sexual harassment.
While control measures will differ for each workplace based on what is reasonably practicable, the Guide sets out a range of suggested control measures for consideration addressing the following key themes:
- Physical work environment and security;
- Safe work systems and procedures such as implementing sexual harassment policies, providing regular supervision and communication with workers, and acting in a consistent manner when dealing with reports of sexual harassment;
- Workplace policies including setting workplace standards about behaviour and language, addressing appropriate social media use, and consequences for breaching policies;
- Third-party harassment (e.g. preventing public access to work areas when working alone or at night; communicating to clients and customers that sexual harassment is not tolerated and training workers on dealing with difficult customers / clients);
- Addressing unwanted or offensive behaviour early including by establishing anonymous reporting and bystander-intervention training;
- Encourage reporting of sexual harassment (e.g. providing employees with an accessible grievance procedure, training key workers to receive complaints, and confidential and consistent responses to reports); and
- Information, instruction, training and supervision.
Risk control measures should be subject to consultation with workers and ongoing monitoring and review to ensure their effectiveness.
Note: Comcare also recently released a suite of guidance materials and resources on workplace sexual harassment to be read in conjunction with Safe Work Australia’s national guidance on workplace sexual harassment. The suite includes practical guides for managers and supervisors and employers.
The Victorian and New South Wales regulators’ publications were discussed in a previous article on this blog in November 2020.
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