Resources: Blog

Sexual harassment and work health and safety

Blog
|

New guidance material released by Safe Work Australia

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

Dismissals for temporary illnesses under the FW Act

Red Light, Green Light

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury.

Read more...

The importance of WHS refresher training

Not a “one and done” thing

It is an expected and necessary part of work health and safety (WHS) plans that all new workers receive relevant WHS training.

Read more...

Changes to the Fair Work Act and Sex Discrimination Act to commence shortly

NEWS UPDATE

On 2 September 2021, the Federal Parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 (the Bill).

Read more...

Commission critical of employer’s entirely email-based disciplinary process

Words flying high

Communication between the employer and employees is essential for a good working relationship. Poor communication in the disciplinary process may lead to a deficiency in the process which renders the dismissal unfair.

Read more...

Dismissals for temporary illnesses under the FW Act

Red Light, Green Light

Within the general protections of the Fair Work Act 2009 (Cth) (FW Act), there is a protection afforded to employees who are temporarily absent from work because of an illness or injury.

Read more...

Commission orders employer to pay compensation as a result of its procedurally unfair disciplinary process

Procedurally disastrous

When investigating allegations of misconduct against an employee in the workplace, employers must ensure that any ensuing disciplinary process is kept distinct from and separate to from the investigation.

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 Relations.

Signup to receive the latest industry updates with commentary from the Workplace Law team direct to you inbox.