Australia: NSW Takes Steps to Preventing Sexual and Gender-Based Harassment in the Workplace
Authors: Greg Robertson, Hannah Nesbitt and Callum Sirker
Safe Work Australia has published a model Code of Practice: Sexual and gender-based harassment (“Code”). The Code provides practical guidance for persons conducting a business or undertaking (“PCBUs”) on how to eliminate or minimise the risk of sexual and gender-based harassment at work. New South Wales is one of the first Australian states to formally adopt the Code, giving the Code legal effect in that jurisdiction.
PCBUs are responsible for the health and safety of everyone in their workplace under the work health and safety (“WHS”) laws in each state and territory. This includes a positive duty to eliminate or minimise risks to health and safety, as far as reasonably practicable, including both physical and psychosocial risks. Sexual harassment is treated as a psychosocial risk to health and safety under the WHS laws.
In addition, PCBUs have a positive duty to take reasonable and proportionate measures to eliminate certain discriminatory conduct, including sexual and gender-based harassment, in their workplace under the Sex Discrimination Act 1984 (Cth) (“Sex Discrimination Act”).
Accordingly, both the WHS laws and Sex Discrimination Act require PCBUs to adopt a proactive approach to managing health and safety risks arising from sexual and gender-based harassment at work. This involves more than just training and policies.
PCBUs should familiarise themselves with the Code, as it may be used in court as a means of assessing whether they have complied with their obligations under the WHS laws and the Sex Discrimination Act. It may also constitute evidence in relation to what is known about a hazard or risk at the time of an offence. To put it simply, the Court will not accept ignorance as a defence.
The Code sets out a four-step process to assist PCBUs to eliminate or minimise the health and safety risk of sexual and gender-based harassment so far as is reasonably practicable. These steps are as follows:
- Identify hazards
Find out what the potential risks could be.
- Assess risks
Assess how severe the potential risk could be and how likely it is to happen. This step may not be necessary if the risks and controls are known.
- Control risks
If the controls are not known, PCBUs have a positive duty to implement the most effective control measures that are reasonably practicable in the circumstances and ensure they remain effective over time. These measures must attempt to eliminate or at least minimise that risk moving forward.
- Maintain and review control measures
PCBUs must make sure the controls are effective and used correctly, with the ability to make changes if required. Examples of controls include face-to-face training and the implementation of policies on sexual and gender-based harassment. It is crucial for PCBUs to regularly review control measures to ensure their effectiveness. Relying solely on the existence of training and policies does not meet the positive duty.
Leaders of PCBUs have an important role to play during this process, and they are in charge of creating a safe and respectful work environment for workers. Those people in a PCBU who have management or leadership roles should intervene early if a report of sexual harassment is received. To carry out their obligations, they need to understand the nature and drivers of harassment, where the risks are coming from, and the control measures their organisation has put in place.
References:
https://www.safework.nsw.gov.au/hazards-a-z/sexual-harassment
The Sex Discrimination Act 1984 (Cth)
Key Action Points for Human Resources and In-House Legal Counsel:
- Perform a risk assessment within your organisation or business; the only way to implement the correct control measures is to know what risks you face.
- Consult your workers—make your workforce aware of the ever-changing harassment laws and regulations.
- Level up your leaders; educate your leaders as to their importance in the implementation and prevention of sexual and gender-based harassment.
