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.
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