Changes to Sexual Harassment Law (QLD). New laws support a holistic, risk-based approach to preventing and responding to sexual and gender-based harassment. Teegan Modderman (experienced WHS investigator and psychologist) shares some key points for workplaces.
According to the National Enquiry into Sexual Harassment in Australian Workplaces (National Enquiry), “Workplace sexual harassment is prevalent and pervasive: it occurs in every industry, in every location and at every level, in Australian workplaces. Australians, across the country, are suffering the financial, social, emotional, physical and psychological harm associated with sexual harassment”. Despite legislative change, awareness raising, and a societal shift towards zero tolerance over the years, there is still several gaps that need to be addressed for us to effectively eliminate these types of harmful behaviours, and the impact they have on our people, our workplaces, and our society.
One of the key findings of the National Enquiry was that the legal and regulatory system is simply no longer fit for purpose. As such, a new model that improves the coordination, consistency and clarity between the anti-discrimination, employment and work health and safety legislative schemes was recommended. On the back this recommendation, Australia now has some of the strongest laws regarding sexual and gender-based harassment.
Specifically, the Fair Work Act 2009 and the Sex Discrimination Act 1984 have been amended to impose legal obligations on organisations to take proactive and meaningful action to prevent unlawful conduct from occurring in the workplace or in connection to work. Further, Safe Work Australia has developed a model Code of Practice for sexual and gender-based harassment. This code sets a benchmark for how organisations are to take a proactive, consultative and preventative approach to sexual and gender-based harassment, whether it comes from colleagues, customers or the public, and whether it’s online or in person. More recently, the Queensland Work Health and Safety (WHS) Regulation 2011 was amended to include requirements to proactively manage the risk of sexual and gender-based harassment at work.
To ensure the health and safety of our workers and others, we need to take a preventative approach and minimise the risk of harm from these type of behaviours so far as is reasonably practicable.
Whilst the WHS legislation has not been enacted in all states, the Queensland Regulation amendments and model Code of Practice sets a standard of what is considered reasonably practicable to prevent and respond to risks associated with sexual and gender-based harassment. Together, the legislative changes across all domains require significant adjustments for organisations to not only comply with what would be considered reasonably practicable but to make meaningful change that has a positive impact.
So, what does this legislative reform practically mean for organisations?
For many years now, organisations have maintained policies and training for identifying harmful behaviours (such as sexual harassment) and managing complaints associated with any related incidents. These policies have often focused on what is required by leaders as well as those impacted to report any incidents and respond via informal or formal mechanisms.
However, under legislative changes, organisations must move from policy and training driven primarily to respond to these behaviours through a human resource lens. Instead, there is a need to adopt an integrated risk management approach combining both safety and human resource management practices. Our approach cannot simply continue to entail policy and training related to our response to mitigate harm, but rather prevention-based controls focused on work design, environment and culture.
In undertaking your risk assessment and developing a prevention plan, consider the guidance material available from our Regulators as well as reputable organisations such as the Australian Human Rights Commission and the Fair Work Ombudsman.
To determine the prevention controls required and effectively assess the risk, we need to fully understand the nature of sexual and gender-based harassment and how these types of behaviours may arise in the context of the work environment we operate in. It is particularly important that our risk assessments consider the workforce characteristics, work design, work environment and the systems of work in place to determine the causes of why this behaviour may arise and the level of risk associated with exposure.
Consultation with workers and their representatives is critical during each of the risk assessment phases to ensure the validity of the information documented, the effectiveness of existing controls, and to support the determination of any additional controls required.
Once a risk assessment identifies and assesses the risks to the health and safety of workers or others from sexual and gender-based harassment at work, a prevention plan to manage these risks is required to ensure both prevention controls are in place to stop these forms of harassment. The model Code of Practice is a helpful framework to use to determine the extent of control measures required to effectively manage the risk. By conducting a gap analysis of your safety and human resource management systems against the model Code of Practice, you will be able to support a better understanding as to whether your organisation has implemented (or planned to implement) what is reasonably practicable to both prevent and manage the risk of any harm.
Lastly, on a day-to-day basis, having in place practical tools and education for safety and human resources advisors as well as leaders is critical for the operationalisation of your management systems. This means tools to objectively identify the workplace factors that may contribute to (or have contributed to) sexual or gender-based harassment, as well as determine suitable control measures to put in place to manage any risk as it arises, or support those impacted by such behaviours.
Where can you seek advice and guidance?
There is much guidance available to support you in understanding these laws and what the requirements are. However, often we find organisations can become challenged by how to practically implement control measures that make a meaningful difference. Further, having specialist support in conducting a gap analysis or risk assessment can assist in getting buy-in from the workforce as well as support independence in your processes.
At YES Psychology, we can support you with your gap analysis, risk assessment or the development of practical tools, resources and training tailored to your work environment and context. Please reach out to the team should you wish to find out more.
About the Author: Teegan Modderman is a registered Psychologist, Lead Auditor, and Investigator with over 18 years experience in conducting psychosocial risk assessments in various industries. In her previous role as Director of Psychological Health for Workplace Health and Safety Queensland, Teegan was instrumental in establishing the business case for the recent legislative and regulatory reforms related to psychosocial hazards and the development of industry guidance and tools such as the Mentally healthy workplaces toolkit, handbooks for work-related violence and fatigue, and the People at Work (Psychosocial Risk survey) digital platform.