In a step described as 'nation-leading', the Queensland Government has introduced changes to the Work Health and Safety Regulation 2011 (WHS Reg) regarding the prevention of sexual harassment and sex or gender-based harassment at work.

The new provisions are in two tranches:

• Starting 1 September 2024 – express obligations regarding the proactive management and prevention of risks to health and safety from sexual harassment and sex or gender-based harassment at work.
• Starting 1 March 2025 – a requirement to prepare a prevention plan to manage identified risks.

While the Work Health and Safety Act 2011 (Qld) (WHS Act) and Reg in Queensland already contain obligations in relation to psychosocial risks, these changes expressly include sexual harassment and sex or gender based harassment within that broader category of risk. Queensland is the only jurisdiction in Australia to have these specific provisions in WHS laws.

There are broad similarities to the positive duty to eliminate sexual harassment under federal discrimination laws and in some State discrimination laws (including Victoria). However, the WHS laws increase the potential penalties, including criminal penalties, and expose Boards and Executives to charges for a failure to exercise due diligence in relation to these risks.

What changes apply from 1 September 2024?

The new laws require an organisation to:

• Expressly manage the risk to health and safety from sexual harassment and sex or gender-based harassment at work. In practice, this means having in place a specific sexual harassment risk assessment, based on consultation feedback from the workforce.
• In determining control measures, have regard to all relevant matters in relation to the risk of sexual harassment and sex or gender-based harassment at work including matters relating to characteristics of the workers, the workplace and the environment.
• Review and, as necessary, revise control measures where it receives reports of sexual harassment or sex or gender-based harassment at work.

What changes apply from 1 March 2025?

The area requiring the most work from the changes starts on 1 March 2025 – organisations must prepare and implement a plan to manage identified risks to health or safety of workers or other persons from sexual harassment or sex or gender-based harassment (Prevention Plan).

The Prevention Plan must:

• Be in writing.
• State each identified risk.
• Identify:

• control measures (implemented or to be implemented) to manage each identified risk; and
• the matters considered in determining the control measures (including those in the WHS Reg).

• Describe the consultation undertaken in line with the WHS Act.
• Be set out in a way that is readily accessible and understandable to workers.
• Set out the procedure for dealing with reports of unsafe conduct.

The Prevention Plan must be reviewed as soon as practicable after a report of sexual harassment or sex or gender-based harassment at work is made, as soon as practicable after a Health and Safety Representative or Committee ask for the plan to be reviewed or otherwise every three years.

Reasonable steps must be taken to make workers aware of the Prevention Plan and how to access it.

Interaction with discrimination laws?

As noted above, there is a broad similarity with the positive duty under federal discrimination laws. In particular, the guidance released by the Australian Human Rights Commission recommends that senior leaders prepare or approve a written prevention and response plan.

While there are some content updates that will be required if you intend to use the same plan for a WHS Reg perspective, you will definitely have a head start. There is nothing to prevent an organisation from having a single plan across multiple jurisdictions, provided it meets the WHS Reg content requirements, and it makes the most sense to do so.

There are also proposed changes to the Anti-Discrimination Act 1991 (Qld) to extend the positive duty which are scheduled to be further debated in Parliament on 10 September 2024. The Queensland Human Rights Commission is to issue guidelines on how persons may comply with the positive duty. If passed, this positive duty will broadly align with the WHS laws.

What should you be doing now?

While changes to WHS laws have been coming at a rapid pace in Queensland during 2024, organisations must remain proactive to ensure compliance with these latest changes. Read our article, Important amendments to the Work Health and Safety Act 2011 (Qld).

All organisations in Queensland should be taking the following actions over the coming months:

• Revisit or commence a standalone sexual harassment and related conduct risk assessment. Ensure that the consultation with the workforce that feeds into that assessment is recent.
• Review your control measures and consider what else is required.
• Ensure you have a clear reporting process for workers in relation to sexual harassment and other related conduct. Remind workers of these processes.
• Determine how you will update your risk assessment and control measures after receiving complaints.
• Confirm your training is up to date relating to appropriate workplace behaviour and that all workers in your business (including contractors, subcontractors, apprentices and volunteers) understand the standard of behaviour required.
• Commence work now to prepare your Prevention Plan for 1 March 2025. Many of the steps above will feed into the Plan.
• Update your officer due diligence reporting to ensure sexual harassment and other similar unlawful conduct risks are appropriately addressed, and that Board and Executives in particular are properly briefed on these changes.

For those operating in jurisdictions in addition to Queensland, the Queensland laws are currently the high water mark and an approach that meets the obligations in Queensland will satisfy the WHS regimes in other States and Territories.

If you would like to discuss any of the upcoming changes, please reach out to one of our team members.