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If your business has not re-framed its approach to sexual harassment as a safety matter, now is the time to connect Human Resources and Workplace, Health and Safety (WHS) staff together to ensure compliance with this new critical obligation. Sexual harassment is a recognised safety issue, and for businesses to comply with the new obligation to have a sexual harassment prevention plan, requires viewing the matter through a multifocal HR and WHS lens.

New obligations can’t be ignored

Published in September on the day it partially came into effect, the Qld government has released a new Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (Regulation) that requires businesses to have a sexual harassment prevention plan by March 2025.

Although brief, this regulation introduces new obligations for all persons conducting a business or undertaking that should not be ignored. The sexual harassment prevention plan, may fall into the Human Resources sphere at first glance, but its clear that it will also require collaboration with, and some heavy lifting from, the WHS function in organisations and leaders alike. These individuals are likely ‘officers’ with due diligence obligations under the Work Health and Safety Act 2011 (Qld) (WHS Act).

What are the new obligations?

From 1 September 2024, a person conducting a business or undertaking (PCBU) must manage the risk to health and safety at work from sexual harassment or sex or gender-based harassment. While this obligation is already required under Federal legislation, and 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; and
• Workplace characteristics such as:
  – an environment, culture, or system of work in which unacceptable or inappropriate behaviour is, or maybe, permitted;
  – a lack of diversity in the workplace generally or in particular decision-making positions; and
  – other matters that may affect a person’s behaviour 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 (amongst others) are at greater risk from psychosocial hazards (of which sexual harassment is such a hazard). Women, LGBTQIA+ 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, and 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 by 1 March 2025?

From 1 March 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 a relevant matter if the majority of other workers are all of a different sex and are a similar age to each other;
  – a workplace being a hotel may be a relevant matter if 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; and
  – the complainant can use the issues resolution and dispute resolution process in the WHS Act;
• be set out and expressed in a way that is readily accessible and understandable by workers.

PCBUs must ensure workers make prevention plan accessible

Further, the PCBU must take reasonable steps to ensure workers are made aware of the prevention plan and how to access it, and review the plan as soon as practicable if:

• a report of sexual harassment or sex or gender-based harassment is made; or
• a health and safety committee or a worker’s health and safety representative requests a review of the plan; or
• otherwise, review the plan every 3 years.

Failure to have a plan, and failure to review the plan could expose the employer to a fine of 60 penalty units (currently $9,679) for each failure.

Spotlight on employers

The spotlight is well and truly on positively eliminating sexual harassment, and this is likely to lead to increased Fair Work, Human Rights Commissions, and Federal Court claims, along with the standard increase regulatory action.

Following the positive duty amendments to the Sex Discrimination Act 1984 (Cth), greater attention is being given by work health and safety regulators in all States to ensure that businesses are complying with the obligations. Ignoring these obligations or thinking it will not affect your business is costing employers and broader society through an increase in worker’s compensation claims and mental health treatments.

What are the risks for non-compliance?

Should your business face an employee complaint or investigation by the Regulator or the Australian/Queensland Human Rights Commission, failure to comply with the positive and 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 Work Health and Safety regulator can also issue on-the-spot fines (infringement notices), improvement notices, and prohibition notices (amongst 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 must work together regularly to update policies, exchange ideas, and keep up to date on the latest developments in the law and best practice in the industry. This should be done in conjunction with directors or any person who is an ‘officer under the WHS Act so they can maintain compliance with their various duties.

Businesses can also ensure that they:

1. Stay up to date with legislation amendments and attend industry events.
2. Regularly review and update their policies and procedures in line with the law and best practice.
3. Ensure that policies are consistently enforced.
4. Review the WorkSafe Qld Communications Kit and Factsheet for the Regulation.
5. Plan and commence the consultation process for the prevention plan.
6. Conduct a sexual harassment and gender-based harassment risk assessment to identify risks, workplace characteristics, and control measures.
7. Update sexual harassment/discrimination/bullying training for all staff and include education on the prevention plan. This training should be slightly different for operational staff than for managers or directors who have supervisory positions and officer duties under the WHS Act.

If your business needs assistance with managing the new prevention plan obligation, or any employment or safety obligation, please reach out for a confidential and non-obligation chat.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.