New WHS obligation on employers to prevent harassment

Under a recent amendment to the Queensland WHS Regulation, employers must proactively manage the risk of sexual harassment and sex or gender-based harassment at work. A prevention plan is required to manage identified risks to the health and safety of workers, or others, from sexual harassment and sex or gender-based harassment at work.

What specific behaviour does “sexual harassment and sex or gender-based harassment” include?

Sexual harassment is any unwelcome sexual behaviour that a reasonable person could anticipate may make another person feel offended, intimidated or humiliated in that situation. Sex or gender-based harassment means the harassment of a person on the basis of the person’s sex or gender, by unwelcome conduct of a demeaning nature, with the intention of offending, humiliating the person or in circumstances where a reasonable person would have anticipated the person would be offended, humiliated or intimidated by the conduct.

New obligations for employers in preventing sexual harassment

Employers must specifically consider and manage these risks within the WHS framework. In particular, employers must develop and implement a written prevention plan to manage identified risks to the health or safety of workers, or other persons, from sexual harassment and sex or gender-based harassment at work. The plan must identify the risks, taking into account the specific working environment and worker characteristics, and suitable controls, and it must be developed in consultation with workers. The plan must be accessible to workers.

The plan must be implemented, and then reviewed every three years, or as soon as practicable following a report of sexual harassment or sex or gender-based harassment or request by a WHS committee or worker’s representative.

What are the risks if an employer fails to comply?

This requirement is now in effect and failure to prepare, implement or review the plan exposes the employer to fines of up to 60 penalty units (currently $9,678) per breach.

Additionally, employers may be liable for additional penalties or civil claims relating to their duties under the Sex Discrimination Act or the Fair Work Act. They may also face workers’ compensation claims for any injuries suffered.

For guidance on your obligations, or assistance in preparing the plan, please contact our Employment Team.