Preventing Sexual Harassment in the Workplace - Urgent Update

The last few years have seen a significant focus on how employers can safeguard the health, safety and wellbeing of their employees in the workplace, which includes to prevent sexual harassment, sex-based harassment and gender-based harassment (“Harassment”).    

Legislative Developments in Workplace Safety

Although this obligation has been recognised at common law for a number of years, it has now been legislated for in the Work Health and Safety Act 2011 (“the WHS Act”). 

Key Employer Obligations under the WHS Act

Earlier this year, further changes to the WHS Act were passed, and as at 1 September 2024, persons conducting a business or undertaking (also known as “PCBU”, but for the purpose of this article, we will refer to as “employers”) are required to:

1. Proactively manage the risk of Harassment;
2. Have regard to all relevant factors (which are set out at s. 55F of the WHS Act, and include for example, employee characteristics and the workplace culture) when establishing appropriate control measures for preventing Harassment; and
3. Reviewing (and, where necessary, amend) such control measures upon receipt of a report of Harassment.

Introduction of the Prevention Plan

Further, and effective from 1 March 2025, employers have a statutory obligation to develop a comprehensive Prevention Plan aimed at addressing the risks associated with Harassment.

The Prevention Plan must be prepared in consultation with, and communicated to, all employees.  It must also be easily understood and accessible.  Further, the Prevention Plan must include the following:

• A clear definition of Harassment (including examples of Harassment and inappropriate behaviours);
• Each identified risk to the health and safety of workers related to Harassment. This will require an employer to conduct thorough assessments of the workplace to understand and identify the risk of Harassment.
• Control measures to mitigate or manage an identified risk;
• A description of the consultation process adopted in creating the Prevention Plan;
• A clear complaint and investigation process, which is confidential and free from retaliation.

Training and Implementation

To support the implementation of the Prevention Plan, as well as ensuring compliance, employers will need to provide training to all employees, focusing on recognising inappropriate behaviour, understanding the impact of harassment, and promoting bystander intervention techniques. By equipping employees with the knowledge and tools to combat harassment, organisations can empower their workforce and reduce instances of Harassment.

Review and Maintenance of the Prevention Plan

An employer is also required to carry out regular reviews of the Prevention Plan, either following receipt of a report of Harassment, upon request, or otherwise every three years.  Following review, any significant amendments to the Prevention Plan must be done in consultation with employees.

Legal Implications of Non-Compliance

Of particular importance, a failure to have a Prevention Plan may result in a finding that an employer has contravened its obligations of the WHS Act.  This may result in prosecution and, if appropriate, the imposition of penalties.  This is aside from any claim that an employee, affected by Harassment, may have against the employer.

Upcoming Changes to the Anti-Discrimination Act

This important change to the WHS Act will be supported by upcoming amendments to the Anti-Discrimination Act 1991 (“the ADA”), which will also impose upon employers a positive obligation to prevent discrimination (which can include sexual harassment).  Although changes to the ADA do not take effect until 1 July 2025, employers should be proactive in implementing any policies or procedures necessary to ensure compliance with their legal obligations.

Act Now to Ensure Compliance

The deadline for having a Prevention Plan in place is fast approaching.  If you need any help preparing for 1 March 2025, don’t hesitate to contact one of our local, expert employment lawyers on (07) 4963 2000.