Positive duty to prevent sexual harassment under new Work Health and Safety amendments
The Work Health and Safety (Sexual Harassment) Amendment Regulation provides new amendments to an employer’s positive duty to mitigate or eliminate harassment in the workplace. The aim of these new changes is to further prevent physical and/or psychological harm to workers, or other persons.
These changes came into effect from 1 September 2024, and employers must develop and implement a comprehensive approach to preventing misconduct prior to 1 March 2025.
Key changes include:
Employers have a positive duty to mitigate or eliminate the risk of harassment from occurring.
This obligation is not new and falls under an employer’s duty to mitigate or eliminate psychological harm to employees, or other persons. The current amendments further clarify the steps employers must take to prevent sexual or sex or gender-based harassment within the workplace.
Employers must develop and implement a Prevention Plan to control the risk of harassment from occurring.
Employers must complete a risk assessment for sexual or sex or gender-based harassment occurring within the workplace. If a risk is identified, employers are obligated to develop a written prevention plan which outlines each risk, control measures to manage these risks, and the factors considered when determining these measures.
The prevention plan must be implemented by 1 March 2025. The plan must be reviewed if a complaint of harassment is made, a health and safety representative requests a review, or otherwise, every three (3) years.
The characteristics of workers, the workplace and the work environment must be considered when identifying risks and developing control measures.
In determining control measures, employers must consider all relevant factors in relation to the risk of sexual or sex or gender-based harassment at work. Completing a general assessment is not enough to comply with obligations.
Employers must actively prevent misconduct from occurring, rather than relying on victims to report the harassment after harm has occurred. Simply responding to a complaint after an incident has occurred, is no longer sufficient.
A Prevention Plan must be easily understood and accessible to workers.
During the development of a Prevention Plan, employers must consult with workers to determine appropriate control measures. The process, and how the plan complies with obligations under the Act, must be described in the plan.
A Prevention Plan must clearly outline the steps taken once a complaint regarding harassment has been made. This includes how employees can lodge a report, the investigation process, and how relevant parties will be informed of an outcome. Employers must take reasonable steps to make employees aware of the plan and how to access it.
Further guidance will be released on how to develop a Prevention Plan in compliance with the Act, within upcoming months.
Steps employers can take:
Understand these changes, how this may affect your workplace, and what sexual harassment can look like at work
Review current policies and procedures, ensuring they reflect amendments and a commitment to taking a proactive stance against harassment
Ensure complaints processes are updated, and outlining the steps from lodging to investigation, and how outcomes will be communicated
Review, or undertake, a risk assessment for sexual harassment and other unlawful conduct
Begin developing a Prevention Plan in response to any risks identified and is in line with any guidance material, including the steps taken to review the Plan when required
Consult with workers throughout these processes, and inform them on how to access the Prevention Plan and how complaints can be made
Provide training to workers on appropriate workplace conduct, fostering safe work environments, and their obligations under the Act
