The Queensland Government has introduced changes to the Work Health and Safety Regulation 2011 (WHS Reg) regarding the prevention of sexual harassment and sex or gender-based harassment at work.
The new provisions are in two tranches:
- Starting 1 September 2024 – express obligations regarding the proactive management and prevention of risks to health and safety from sexual harassment and sex or gender-based harassment at work.
- Starting 1 March 2025 – a requirement to prepare a prevention plan to manage identified risks.
While the WHS Act and Reg in Queensland already contain obligations in relation to psychosocial risks, these changes expressly include sexual harassment and sex or gender-based harassment within that broader category of risk. Queensland is the only jurisdiction in Australia to have these specific provisions in WHS laws.
There are broad similarities to the positive duty to eliminate sexual harassment under federal discrimination laws and in some State discrimination laws (including Victoria). However, the WHS laws increase the potential penalties, including criminal penalties, and expose Boards and Executives to charges for a failure to exercise due diligence in relation to these risks.
What changes apply from 1 September 2024?
The new regulations require persons conducting a business or undertaking (PCBUs) to take into account the following matters when determining appropriate controls to manage the risk of sexual harassment and sex- or gender-based harassment:
- Expressly manage the risk to health and safety from sexual harassment and sex or gender-based harassment at work. This includes matters relating to the characteristics of workers such as age, gender, sex, sexual orientation or disability. In practice, this means having in place a specific sexual harassment risk assessment, based on consultation feedback from the workforce.
- In determining control measures, have regard to all relevant matters in relation to the risk of sexual harassment and sex or gender-based harassment at work including matters relating to characteristics of the workers, the workplace and the environment such as:
- whether there is a work environment that may give rise to a workplace culture or system of work in which unacceptable or inappropriate behaviour is, or may be, permitted;
- whether there is a lack of diversity in the workplace generally or in particular decision-making positions; and
- any other matters about the workplace or work environment that may affect a person’s behaviour in relation to a worker.
- Review and, as necessary, revise control measures where it receives reports of sexual harassment or sex or gender-based harassment at work.
The regulations provide examples, including:
- a younger worker’s sex may be relevant if the majority of other workers are all of a different sex and of a similar age to each other;
- the work environment in a hotel may be a relevant factor if patrons at the hotel may be affected by drugs or alcohol; and
- an employee being a casual or part-time worker, and their supervisor being a permanent staff member may be a relevant factor.
The purpose of these new regulations is to ensure PCBUs focus specifically on the risk environment of their own workplaces and the workplaces where their workers may be required to go.
What changes apply from 1 March 2025?
From 1 March next year, Queensland businesses will also need to prepare a prevention plan to address these risks and take steps to ensure workers are made aware of this plan.
The prevention plan must be in writing, identify the risks and controls in place as well as the factors that the PCBU took into account, including consultation on the process. The plan must specifically address:
- how reports of an incident may be reported;
- how alleged incidents will be investigated; and
- the process for issue and dispute resolution.
The Prevention Plan must be reviewed as soon as practicable after a report of sexual harassment or sex or gender-based harassment at work is made, as soon as practicable after a Health and Safety Representative or Committee ask for the plan to be reviewed or otherwise every three years.
Reasonable steps must be taken to make workers aware of the Prevention Plan and how to access it.
There are also proposed changes to the Anti-Discrimination Act 1991 (Qld) to extend the positive duty which were scheduled to be further debated in Parliament on 10 September 2024. The Queensland Human Rights Commission is to issue guidelines on how persons may comply with the positive duty. If passed, it is understood that this positive duty will broadly align with the WHS laws.
What should you be doing now?
Organisations in Queensland Should be proactive to ensure compliance with these latest changes and should be taking the following actions over the coming months:
- Review and or develop a standalone sexual harassment and related conduct risk assessment. Ensure that the consultation with the workforce that informs that assessment is current.
- Review your control measures and consider what else is required.
- Ensure you have a clear reporting process for workers in relation to sexual harassment and other related conduct. Inform and or remind workers of these processes.
- Ensure your reporting and governance measures relating to sexual harassment and other unlawful conduct risk are appropriately addressed and board members and executives are properly briefed to avoid potential penalties.
- Determine how you will update your risk assessment, investigation and control measures after receiving complaints.
- Confirm your training is up to date relating to appropriate workplace behaviour and that all workers in your business (including contractors, subcontractors, apprentices and volunteers) understand the standard of behaviour required.
- Commence work now to prepare your Prevention Plan for 1 March 2025.
If you would like to discuss any of the upcoming changes, please reach out to one of our team members.
At WISE Workplace, we have a highly trained, qualified and experienced team committed to assisting employers in building positive workplace cultures. For more information, reach out to us today [email protected].
Photo by The Jopwell Collection on Unsplash
