Your guide to the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024

Andrea Fox:

Hi, I'm Andrea Fox, Executive Director of Policy and Workplace Services in Workplace Health and Safety Queensland. I'm here today to talk about some important changes to the Work Health and Safety Regulations around sexual harassment and sex or gender-based harassment and what these mean for businesses and workers.

We will be discussing what sexual harassment and sex or gender-based harassment is, the impact it has, and some considerations and control measures you need to have in mind in the workplace.

If today's recording brings anything up for you, please draw on the supports that work for you. We will also share some support services available at the end of the session and I encourage you to pause this recording at any time if it's making you uncomfortable.

Firstly, I'd like to pay my respects to the traditional custodians of the land from which this recording is made and pay my respects to Elders past and present and extend that respect to Aboriginal and Torres Strait Islander people viewing this from their homes or workplaces.

Let's look at the changes. From 1st of September 2024. New requirements for stronger regulation of sexual harassment and sex or gender-based harassment at work commenced in Queensland. The amendments are the first of their kind in Australian workplace health and safety legislation, and they make it clear that ‘PCBUs’, or employers as you might know them, need to be proactive about preventing sexual harassment and sex or gender-based harassment in in the workplace. I want to explain that while these amendments provide explicit new requirements to manage the risks—actually we've always been required to manage the risk of sexual harassment and sex and gender-based harassment in the workplace because it's a workplace health and safety hazard. You might remember the 2023 regulations that came in around Managing the risks of psychosocial hazards, and you probably know that sexual harassment and sex or gender-based harassment is one of those hazards in the regulations.  These new regulations are specific to sexual harassment and sex or gender-based harassment and they help you focus on that hazard. The regulations are explicit in saying that these risks have to be managed and also about how you go about doing this, the matters that you need to consider when you determine control measures and how to record and implement prevention strategies. I'll go over these changes in further detail, but first of all let's look at what we mean by sexual harassment and sex or gender-based harassment and why these regulations have been made.

For too long we haven't thought of it like this, but sexual harassment and sex or gender-based harassment are work health and safety hazards and they can cause psychological or physical harm in your workplace. The amendments have been developed in response to recommendations and findings of several recent reviews you might be familiar with some of them from the Australian Human Rights Commission's 2020 Respect@Work report and the 2022 survey, Time for Respect. Both of these found that sexual harassment pervades every industry, location and level of Australian workplaces. The survey also indicated that one in three people have experienced sexual harassment in the workplace in the last five years. Employers should already be managing the risk of sexual harassment as part of their duties in the Work Health and Safety legislation, but what we found in those findings is that the approach hasn't been enough we need something more effective in combating sexual harassment and sex or gender-based harassment. We need it to stop.

Before we go further it's important to clarify what we mean by sexual harassment and sex or gender-based harassment. You'll see on the screen shortly a good definition of both.

The new regulations mean that employers must manage the risks of these types of harassment at work. And remember that the definition of work or a workplace can be quite broad and may include the worker's usual workplace or a client's home or a work-related event such as a Christmas party. And it could occur by phone, email, online or at worker accommodation such as fly in fly out sites.

It's important for you to understand that sexual harassment and sex or gender-based harassment can take many different forms and these types of harassment may be one-off or they may be repeated behaviour. They can be overt or subtle—the most serious acts such as sexual assault are also criminal offenses. Sexual harassment and sex or gender-based harassment can also be behaviour that while not directed at a particular worker, affects that worker who is exposed to or witnesses it such as overhearing a conversation, rumours or seeing sexually explicit posters in the workplace. It may come from other workers of the business. It might come from managers, supervisors, colleagues or even subordinates, and it can come from workers of other businesses—for example where you share premises or where that shared work is on the same tasks. It may also come from third parties such as customers, clients, patients, students, families, visitors, delivery persons and other people that are in the space.

Let's look at what sexual harassment and sex or gender-based harassment looks like. It can look like inappropriate physical contact, being followed either in-person or via technology, sexual comments, gestures or indecent exposures. It can come from comments, insults or jokes of a sexually suggestive, explicit or sexist nature. Inappropriate staring, leering, deliberately misgendering someone including using incorrect pronouns, intrusive questions or comments about a person's private life, sexually explicit gifts, images, videos, cartoons drawings, photographs. Repeated or inappropriate invitations to go out on a date, gender double standards or different repercussions for the same actions. And this kind of harassment can cause physical and psychological harm to those receiving it but also to those people witnessing it. It can lead to significant social and economic costs for workers their family the organisation and the wider community. The potential impacts on workers are listed on your screen.

Obviously, the impact of sexual harassment and sex or gender-based harassment is pretty significant so that's why the Queensland Government decided to bring in extra regulations in the work health and safety space. These regulations have some important contributions. First of all—they are prevention-based. They don't rely just upon somebody making a report of sexual harassment—they recognise that we have a duty to prevent this from happening in the first place. Also work health and safety is a system-based approach to working with hazards. So, it's a systems-based approach to this—it’s not about an HR issue. It's not about individuals—it is about looking at the systems in your workplace for preventing this kind of harassment. As with other types of hazards that you might be looking at in the workplace context, you have to follow some fairly standard steps: identify the risks; implement some control measures—some things to stop them in the workplace; review your control measures—have a look at them see if they're working and importantly from 1st of March 2025, you have to have a written prevention plan. That means it's not enough just to be having a discussion about how we're going to approach these or a thought about how we might approach this—we are going to document them exactly what we're doing under these regulations. It's not enough to just think generally about the risk of sexual harassment or sex or gender-based harassment—you will need to approach the risks in your workplace doing two steps. One of them is thinking about the characteristics of the workers you have, and the second one is thinking about the characteristics of your workplace.

Let's talk about some of those characteristics that you need to think about in the context of your workplace. Particular cohorts of workers are more vulnerable such as young workers, workers with a disability, Aboriginal and Torres Strait Islander workers and workers in insecure or precarious forms of employment including being on a working visa. Low worker diversity can also be a risk factor. Lower worker diversity it's not a problem in itself—you may be a male-dominated workplace, you may be a workplace that's dominated more by particular age group, you may be a workplace that's dominated more by a particular race or culture. As I said that's not a bad thing in itself. The problem is that it can lead to a bit of ‘group think’ and ‘group think’ can create an environment where something like sexual harassment or sex or gender-based harassment becomes quasi-acceptable in the culture. So, as I said it's not a bad thing to have low worker diversity but if that's the case in your workplace, be aware that some of that ‘group think’ can occur.

Power imbalances are another risk factor to consider. Almost all workplaces are hierarchical but think about who has the senior positions in your workplace and who has the junior. If you tend to find there's a lack of diversity amongst the people who are in the senior position or those in the junior positions, it may be a risk factor for sexual harassment or sex or gender-based harassment. Workplace culture is another thing to consider. Is there a bit of a sense in your workplace that rules don't apply to us? Or maybe sexual harassment has been treated as a joke in the workplace? Another element to consider in the factors around your workplace is whether your workers are engaged in remote or isolated work or if they're exposed to people under the influence of drugs and alcohol either in a bar or in a hospital setting?

The next step in the regulations is implementing your control measures once a risk has been identified. Employers must eliminate the risk so far as is reasonably practicable and if it's not practicable to eliminate it all together, minimise the risk so far as you can in accordance with the hierarchy of controls—a fundamental feature of the work health and safety legislation. Examples of controls that you can use to manage the risk of sexual harassment and sex or gender-based harassment include the following: changing the design of work (you might avoid having workers working alone and instead have them working in a pairs); changing the design layout and environmental conditions of the workplace by ensuring there's internal and external lighting and good visibility including safe entry to and exit from the workplace; you might implement some administrative controls as well such as formal training for your staff. Another thing you might do is provide them some form of personal protective equipment or PPE and this could be something like a personal distress alarm if appropriate.

As with other health and safety risks, employers have to review, modify or replace their control measures for managing these types of harassment risks if they're found to not be working effectively. Here are some of the triggers for that: if a person in your workplace reports sexual harassment or sex or gender-based harassment at work you'll need to do a review of your control measures; if you find a situation where the control measure did not control the risk in reality; if there's been a change at the workplace that is likely to give rise to a new or different version of this risk you'll also need to look at the control measures again; if a new hazard or risk of this nature is identified and comes to your attention; if the results of consultation with your workers indicate a review is necessary and finally if you have a health and safety representative on your site and they request a review then you'll also need to do one then.

From the 1st of March 2025, PCBUs or employers must prepare a plan to manage the risk of sexual harassment or sex or gender-based harassment. If you're in a workplace where you find there isn't a substantial risk of sexual harassment or sexual gender-based harassment, that is you might be a sole trader for instance, you will be exempt from the prevention plan requirement.

Let's look at what you need to do when you prepare that prevention plan. You need to identify the risks as we talked about before. You need to identify the control measures that you're going to use to target those types of risks. And then you need to identify the matters specific to your workplace—those kinds of workplace context elements that I was discussing before. When you're putting this prevention plan together, you'll also find it good to look at the psychosocial hazard’s regulations—this is under 55d two of the Work Health and Safety Regulations because this regulation works alongside that one when you're writing your prevention plan. Think about the procedure that you're going to have in your workplace or do have for dealing with reports of sexual harassment—this will include how is a person going to make a report in your organisation and how will it be investigated. What if the person who is making the report is actually going to be represented by someone else? Maybe their union? Maybe a health and safety representative? How does the person who made the report and the other parties involved get informed of the results of the investigation? Also, people in your organisation may want to use the existing issue resolution procedures and dispute resolution processes to resolve this matter to meet the obligations of this regulation. You can't write the prevention plan in isolation—in fact you'll be required to consult with your workers on the development of the plan and show evidence of how you did this consultation in your plan. You will also need to show that you implemented the plan actively in your workplace and take reasonable steps to make sure the plan is accessible and known about by your workers. Review the plan every three years or sooner when those triggers occur that I mentioned before. That is where an incident of harassment has been reported or if a review is requested by your health and safety committee or your health and safety representative.

Further guidance in information is being prepared currently to help with the prevention plan and it'll be provided prior to commencement—that 1st of March 2025 date. There are some valuable links on this slide please note particularly worksafe.qld.gov.au/sexual harassment for a link to a fact sheet guidance and some other resources specific to this regulation.

If this session today has brought anything up for you, please remember you're not alone. In an emergency call triple 0 or go to your local hospital emergency department. On screen are some other support services that are also available 24/7 for you.

Thank you for your time today we hope it's been helpful in updating you on recent changes to the regulations in work health and safety.