Resources: Blogs

New guidance material released by Safe Work Australia

Blogs
|

Sexual harassment and work health and safety

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful.

Australia has long had in place state and federal anti-discrimination legislation which recognises sexual harassment as a form of sex discrimination and makes sexual harassment in the workplace unlawful. Under sex discrimination legislation, such as the Sex Discrimination Act 1984 (Cth), employers are obligated to ensure that workplaces are free from sexual harassment and can be held vicariously liable for the unlawful acts of their employees.

New guidance material has been released by SafeWork Australia that now places sexual harassment in the workplace within the ambit of work health and safety (WHS) legislation as well.

The Preventing Workplace Sexual Harassment – National Guidance Material (the Guide) provides that sexual harassment is a workplace hazard which gives rise to psychological and physical harm and which PCBUs (employers) have a duty to prevent. The Guide is complimented by Information Sheets for small businesses and for workers, released by Safe Work Australia.

The Guide provides that sexual harassment may occur at any workplace. Under WHS legislation, a “workplace” is defined broadly and is any place where work is carried out, and as such may include remote working, work-related activities such as training and work social activities. The Guide also provides that sexual harassment may also occur away from the workplace but arise from the workplace, such as offensive text messages sent from colleagues.

While anti-discrimination legislation prohibits workplace participants from engaging in sexual harassment, the Guide further identifies “third-party” sexual harassment which may be directed toward a worker by client or customer as a WHS risk.

Employers are obliged to eliminate WHS risks as far as reasonably practicable.  This requires employers to apply a risk management approach. Some of the control measures identified by the Guide to prevent workplace sexual harassment include:

  • implementing safe systems of work;

  • adopting anti-harassment policies;

  • undertaking anti-harassment training;

  • encouraging early reports of sexually harassing behaviour; and

  • appropriately responding to complaints in a timely manner.

The Guide also identifies sexual harassment as a form of “gendered violence”. Safe Work Australia has separately released the Preventing Workplace Violence and aggression – National Guidance Material to assist employers to prevent violence and aggression in the workplace.

What does this mean for employers?

The identification of sexual harassment as a WHS risk to which WHS obligations apply may mean that employers could be in breach of WHS laws if they fail to provide a safe working environment should sexual harassment in the workplace occur. This may also mean that complainants may be able to report risks of sexual harassment in the workplace to WHS regulators and those regulators may exercise any powers of inspection to ensure there has been compliance with WHS laws.

Employers should take the opportunity to review WHS systems to ensure that the risks of sexual harassment, including third-party harassment, are appropriately addressed. This will include updating anti-harassment policies and safety policies to recognise the risks of sexual harassment within the workplace and ensuring that there is regular training of employees in these policies.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

Similar articles

The difficulties in balancing privacy and WHS obligations when handling employee personal information

To tell or not to tell

A recent decision of the Office of the Australian Information Commissioner has illustrated how difficult it can be for employers to balance their obligations under various workplace laws when managing ill and injured employees.

Read more...

Victoria records first workplace manslaughter conviction

Various Australian jurisdictions have been slowly introducing an offence of industrial manslaughter, dealing with workplace fatalities that arise as a result of negligent conduct by a person conducting a business or undertaking or its officers.

Read more...

Employer found liable for workers compensation despite worker’s unreasonable perceptions

Fact or fiction

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

Read more...

Sole trader convicted and fined for WHS breach resulting in death of worker

In a recent decision of the NSW District Court, a sole trader has been convicted and fined $100,000 for breaching his health and safety duty under the Work Health and Safety Act 2011 (Cth), which resulted in workers being exposed to a risk of death or serious injury.

Read more...

$15.3 million in penalties imposed on sushi restaurants and director for serious contraventions

Put your records on

The director and Chief Executive Officer of a group of four sushi restaurants which operated in NSW, the Australian Capital Territory and the Northern Territory was recently ordered to pay $1.6 million for her involvement in contraventions of the Fair Work Act 2009 (Cth) by the Federal Court of Australia.

Read more...

Finishing up employee in notice period amounted to termination

Until it’s time for you to go

Employers often do not require (or desire) employees to work through their notice period. This is particularly the case if an employee has provided resignation of their employment and are disruptive to the workplace.

Read more...

Let's talk

please contact our directors to discuss how ouR expertise can help your business.

We're here to help

Contact Us
Let Workplace Law become your partner in workplace law and sports law.

Sign up to receive the latest industry updates with commentary from the Workplace Law team direct to your inbox.