Safework Australia has released its guide on preventing workplace sexual harassment. We explore the Guide's key processes to minimise the risks of sexual harassment in the workplace and what business should do.
SafeWork Australia's 'Preventing Workplace Sexual Harassment' (Guide) is significant. For the first time, employers have national guidance from Safework Australia on an issue that impacts the health of too many workers each year.
State safety regulators have previously confirmed that sexual harassment is a work health and safety (WHS) issue. Yet the lack of any published guidance or a Code of Conduct has meant many employers have never properly considered sexual harassment as a WHS risk
While it has been over 35 years since Australia introduced the Sex Discrimination Act, sexual harassment remains prevalent in Australian workplaces.
In 2018 the Australian Human Rights Commission commenced their national inquiry into sexual harassment. The result was the [email protected] report released in 2020. The report confirmed what many suspected - that sexual harassment is a systemic issue:
In the report, the Sex Discrimination Commissioner, Kate Jenkins, made 55 recommendations. Two significant recommendations:
The clear message of the Guide is that employers, or (using WHS definitions) Persons Conducting a Business or Undertaking, must treat sexual harassment like any workplace safety risk. This means identifying the risk, assessing the hazard, implementing control measures and reviewing those controls regularly.
The Guide sets out several risk factors that can be identified, including workplaces where:
The Guide also sets ways in which the hazard can be assessed in a workplace including by:
The Guide recommends a proactive approach that involves:
The Guide recommends checks occur at regular intervals to ensure the controls are working. A review may need to occur earlier if:
The Guide is part of a suite of material that has been introduced. Other relevant resources include:
The Guide and is not yet a Code of Conduct. However, if sexual harassment occurs, it would be prudent for an employer to comply with the Guide.
Taking steps to prevent sexual harassment is a must for employers (and PCBUs), and not just to avoid breaching WHS laws.
A breach of WHS laws could result in significant penalties being imposed against the employer and the individuals involved. Liability could also extend to officers who have failed to discharge their own duty to ensure the employer was taking all reasonably practicable steps to prevent the risk from occurring.
As well as breaching the WHS Laws, sexual harassment in the workplace has a number of other serious consequences including:
Compliance with the Guide may provide a basis for an employer to defend other claims for an incident, if it took all reasonable steps to prevent the conduct.
We recommend as a starting point that you:
If you already have these controls in place, consider if they are sufficient and are consistent with the Guide.
We can help you by:
For further practical guidance for Boards and leaders, the Champions of Change Coalition (formerly known as Male Champions of Change) released the Champions of Change Coalition Disrupting the System – Preventing and Responding to Sexual Harassment in the Workplace paper which also offers additional guidance for leaders in every organisation. Amanda Watt, Workplace Partner, was a contributor.