If Queensland (Qld) businesses have not reframed their approach to sexual harassment prevention as a safety matter, now is the time to connect their HR professionals with their work health and safety (WHS) staff to ensure compliance with an upcoming obligation. Sexual harassment is a recognized safety issue, and for businesses to comply with the new obligation to have a sexual harassment prevention plan, they must view the matter through an HR and WHS lens.
New Obligations
Published in September on the day it partially came into effect, the new Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (the “regulation”) has been released by the Queensland government. The regulation requires businesses to have a sexual harassment prevention plan by March 2025.
Although brief, the regulation introduces new obligations for all people conducting a business or undertaking in Queensland. The sexual harassment prevention plan may fall into the HR sphere, but it will also require collaboration with—and some heavy lifting from—organizations’ WHS functions and leaders. These individuals are likely officers with due diligence obligations under the Work Health and Safety Act 2011 (Qld) (the “WHS Act”).
As of Sept. 1, 2024, a person conducting a business or undertaking (PCBU) in Queensland must manage the risk to workplace health and safety posed by sexual harassment and sex- or gender-based harassment. While this obligation already exists under federal legislation, the new regulation introduces the clear and direct responsibility in Queensland.
When implementing control measures, PCBUs must have regard to:
- Worker characteristics such as age, gender, sex, sexual orientation, and disability.
- Workplace characteristics such as an environment, culture, or system of work in which unacceptable or inappropriate behavior is, or may be, permitted.
- A lack of diversity in the workplace, either generally or in decision-making positions.
- Other matters that may affect a person’s behavior in relation to a worker.
Worker and Workplace Characteristics Can Influence Risk
Although not explicitly stated, “worker characteristics” are arguably focused on the characteristics of those people who are more likely to be at risk of sexual harassment. For example, the Managing the risk of psychosocial hazards at work Code of Practice 2022 identifies that workers who have protected attributes under the Anti-Discrimination Act 1991 (Qld) and limited work experience (among others) are at greater risk of psychosocial hazards, including sexual harassment. Women, LGBTQ+ workers, Aboriginal or Torres Strait Islanders, workers with a disability, and migrant workers are at particular risk of experiencing sexual harassment, according to the explanatory note to the regulation.
These workplace characteristics will differ between workplaces and even work locations and teams within workplaces. The explanatory note specifically provides that the examples are only examples and workplaces should not limit their considerations.
What Needs to Be Put in Place?
As of March 1, 2025, PCBUs must have a sexual harassment and sex- or gender-based harassment prevention plan that must:
- Be in writing.
- State each identified risk.
- Identify the control measures to manage each risk.
- Identify relevant individual (age, gender, disability) and workplace characteristics considered by the PCBU in determining the control measures.
For example: At a particular workplace, a younger worker’s sex may be relevant if the majority of other workers are of a different sex than the worker in question and are a similar age to each other. A workplace being a hotel may be relevant since patrons at the hotel may be affected by drugs or alcohol. Describe the consultation process undertaken.
Set out the procedure for dealing with complaints, including:
- How to make a report.
- How it will be investigated.
- That the complainant can have a representative.
- That the person who made the report (and other parties) are informed of the result of the investigation.
- That the complainant can use the issues resolution and dispute resolution processes in the WHS Act. The procedure should be set out and expressed in a way that is readily accessible and understandable by workers.
Further, the PCBU must take reasonable steps to ensure workers are made aware of the prevention plan and how to access it. They must also review the plan as soon as practicable if: 1) a report of sexual harassment or sex- or gender-based harassment is made, or 2) a health and safety committee or a worker’s health and safety representative requests a review of the plan. Otherwise, there is an obligation to review the plan every three years.
Failure to have a plan, and failure to review the plan, could expose the employer to a fine of 60 penalty units (currently A$9,679) for each failure.
Spotlight on Employers
The spotlight is on positively eliminating sexual harassment, and this is likely to lead to increased Fair Work Commission, Human Rights Commission, and Federal Court claims.
Following the positive duty amendments to the Sex Discrimination Act 1984 (Cth), WHS regulators in all states are giving greater attention to ensuring that businesses are complying with the obligations.
What Are the Risks of Noncompliance?
Should your business face an employee complaint or investigation by the regulator or the Australian/Queensland Human Rights Commission, failure to comply with the requirement to have a sexual harassment prevention plan will work against the business. This would likely result in a higher award of penalties, should such actions and omission be proven in court. The WHS regulator can also issue on-the-spot fines (infringement notices), improvement notices, and prohibition notices (among others) for failing to comply with work health and safety obligations under the act or regulation.
What to Do Now?
If your business has not done so already, HR and safety staff should work together regularly to update policies, exchange ideas, and keep up-to-date on the latest developments in the law and the best practices in the industry. This should be done in conjunction with directors or any person who is an officer under the WHS Act so that they can maintain compliance with their various duties.
Businesses can also ensure that they:
- Stay up-to-date with legislation amendments and attend industry events.
- Regularly review and update their policies and procedures in line with the law and best practices.
- Ensure that policies are consistently enforced.
- Plan and commence the consultation process for the prevention plan.
- Conduct a sexual harassment and gender-based harassment risk assessment to identify risks, workplace characteristics, and control measures.
- Update sexual harassment/discrimination/bullying prevention training for all staff and include education on the prevention plan. This training should be slightly different for operational staff than for managers and directors who have supervisory positions and officer duties under the WHS Act.
Caitlyn Wessels and John-Anthony Hodgens are attorneys with Macpherson Kelley in Brisbane, Australia. © 2024 Macpherson Kelley. All rights reserved. Reposted with permission of Lexology.
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