By Nicki Milionis, Isobelle Martin and with thanks to Amy Moore
In July, the Queensland Government announced a “nation-leading” regulatory reform requiring persons conducting a business or undertaking (PCBUs) to proactively address workplace sexual harassment and sex or gender-based harassment. The first tranche of these changes will take effect from 1 September 2024, following the release of amendments to the Work Health and Safety Queensland Regulation 2011 (Qld) (WHS Regulation) on 30 August 2024 as a result of the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024. These changes have been described as the “strongest regulations anywhere in Australia”. We set out below a summary of the changes.
From 1 September 2024 – Specific management of sexual harassment risks
From 1 September 2024, PCBUs must specifically manage the risk to health or safety of workers, or other persons, from sexual harassment or sex or gender-based harassment at work.
Sexual harassment is defined by reference to conduct that would contravene the Anti-Discrimination Act 1991 (Qld)[1] or the Sex Discrimination Act 1984 (Cth).[2] Sex or gender-based harassment has the meaning given by the Industrial Relations Act 2016 (Qld), schedule 5.[3]
When identifying control measures for the risk of sexual harassment and sex or gender-based harassment, a PCBU must have regard to all relevant matters including:
- Matters relating to characteristics of the workers, such as their:
- Matters relating to characteristics of the workplace or work environment, such as:
The requirement for PCBUs to have regard to the above matters ensures that those persons at particular risk of experiencing sexual harassment or sex or gender-based harassment are identified. However, PCBUs must also comply with section 55D of the WHS Regulation and, for example, consider how the risk of sexual harassment may interact and combine with other psychosocial hazards.
Without limiting the existing duty to review and revise implemented control measures as set out in section 38(1) of the WHS Regulation, there is now an additional requirement to review, and as necessary, revise the control measures if a person reports sexual harassment or sex or gender-based harassment at work.
From 1 March 2025 – Prevention plan
From 1 March 2025, PCBUs must develop and implement a written prevention plan to manage the identified risk to the health and safety of workers or other persons from sexual harassment or sex or gender-based discrimination at work. The written prevention plan must specify:
- each identified risk, such as age, gender, English literacy, residency or employment security;
- the control measures implemented (or to be implemented) for each identified risk;
- the matters considered by the PCBU in determining the control measures (including the relevant matters under sections 55F(1) and 55D(2) of the WHS Regulation);
- the consultation undertaken by the PCBU; and
- the procedure for dealing with reports of sexual harassment or sex or gender-based harassment at work, ensuring that each of the matters in section 55H(2)(f) of the WHS Regulation are addressed.
The written prevention plan must be readily accessible and understandable to workers.
Once the prevention plan is prepared, it must be implemented and PCBUs must take reasonable steps to ensure workers are made aware of the prevention plan and know how to access it. Further, 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 committee for the workplace or a worker’s health and safety representative requests a review of the prevention plan; or
- every 3 years.
What should employers do now?
The Office of Industrial Relations has advised that they are developing extensive guidance materials to assist employers in complying with these new obligations. Noting that the first tranche of changes commence on 1 September 2024, organisations and their officers should be:
- undertaking psychosocial (including sexual harassment) hazard identification and risk assessments;
- consulting with workers to identify and assess hazards and establish appropriate control measures;
- mapping current measures against the regulatory obligations and consider reasonably practicable risk controls;
- updating current incident reporting processes and HR and other procedures;
- training for HR and WHS team members on the new requirements; and
- preparing to have a written prevention plan from 1 March 2025.
There have also been extensive changes to Queensland’s WHS Act, WHS Regulation and other safety legislation including the Electrical Safety Act 2002 (Qld) this year. Organisations and their officers should:
- ensure they understand the effect of these recent legislative changes; and
- review their current safety policies and procedures more broadly to ensure their safety systems remain appropriate.
If you would like to discuss these upcoming changes in further detail or require assistance in preparing to meet these new obligations, please contact our Employment and Labour team.
[1] Sexual harassment happens if a person:
- (1) subjects another person to an unsolicited act of physical intimacy, (2) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person, (3) makes a remark with sexual connotations relating to the other person or (4) engages in any other unwelcome conduct of a sexual nature in relation to the other person, and
- the person engaging in the conduct above does so with (1) the intention of offending, humiliating or intimidating the other person or (2) in the circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
[2] A person sexually harasses another person if:
- the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
[3] The harassment of a person on the basis of the harassed person’s sex or gender, by another person who:
- engages in unwelcome conduct of a demeaning nature in relation to the harassed person on the basis of: (1) the harassed person’s sex or gender, (2) a characteristic a person of the harassed person’s sex or gender generally has, (3) a characteristic often imputed to a person of the harassed person’s sex or gender, (4) a sex or gender the harassed person is presumed to have, or to have had at any time, by the person engaging in the conduct or (4) a sex or gender the harassed person has had, even if the harassed person did not have that sex or gender at the time of the conduct; and
- engages in the conduct with the intention of offending, humiliating or intimidating the harassed person or in circumstances in which a reasonable person would have anticipated the possibility that the harassed person would be offended, humiliated or intimidated by the conduct.