Unfortunately, recent times have seen a flood of reports around sexual harassment and sexual assault in the workplace. A great deal of media attention has gone to reports of systemic sexual harassment in both state and federal parliaments, as well as the reports of historical sexual assault levelled against the Federal Attorney-General.
However, these are only the most prominent cases and the tip of the iceberg, and the reality is that sexual harassment is rife in many workplaces.
Employers have any obligation to ensure that employees are safe and free from harassment, bullying or discrimination in the workplace. Employers can be found liable for damages arising from such conduct engaged in by their staff members, either through vicarious liability, or for failing to take all steps reasonably practicable to prevent such conduct. In addition, employers may have penalties imposed on them for breaches of WHS or discrimination legislation.
Safe Work Australia has recently released Australia’s “first comprehensive WHS guidance” on preventing workplace sexual harassment, acting on a national inquiry’s recommendations to produce the document and drive home the message that sexual harassment is a major work health and safety issue.
“WHS duties require employers do everything they reasonably can to prevent sexual harassment from occurring at work, just like other risks to health and safety,” SWA said in launching the 22-page Preventing workplace sexual harassment: National guidance material.
The Australian Human Rights Commission’s national inquiry into workplace sexual harassment made 55 recommendations, including that: the Fair Work Commission be given powers to issue “stop sexual harassment” orders; the model WHS regulations be amended to better deal with psychological health; and WHS guidelines against sexual harassment be introduced “with a view to informing the development of a Code of Practice” on the issue.
The inquiry found sexual harassment is a pervasive problem in workplaces, and identified “an urgent need” to raise awareness that it is a WHS issue.
SWA’s new guidance states that sexual harassment “is covered by WHS laws as it is a workplace hazard that creates physical and psychological risks to health and safety”.
It is also prohibited by state, territory and national anti-discrimination laws, while acts “such as indecent exposure, stalking, sexual assault and obscene or threatening communication (eg. phone calls, emails, text messages and posts on social media) may also be offences under criminal law”, it says.
“All of these laws work together to address sexual harassment to create safer, healthier, more respectful and productive workplaces.”
Employers “must do whatever [they] can” to eliminate the health and safety risks posed by workplace sexual harassment – through identifying the hazards, assessing the associated risks and implementing and reviewing control measures – and they must do these things in consultation with workers and (if they have them) health and safety representatives, the guidance says.
It notes factors that can increase the risks of sexual harassment include low worker diversity (where the workforce is dominated by one gender, age group, race or culture), power imbalances (such as where one gender holds most of the management positions), hierarchical structures (as in the law enforcement, medical and legal sectors), and workplace cultures where “small acts of disrespect and inequality are ignored and reports of sexual harassment or inappropriate behaviours are not taken seriously” – conduct that “can escalate to other forms of harassment, aggression and violence”.
Other risk factors include the use of alcohol in a work context, work in restrictive spaces like cars or in remote locations where there is limited supervision, and working-from-home arrangements, which “may provide an opportunity for covert sexual harassment to occur online or through phone communication”.
On the consultation requirements, the guidance stresses that “drawing on the experience and knowledge of workers is more likely to result in the identification of all hazards and better risk management solutions”.
Among many tips for identifying sexual harassment hazards, it says managers should conduct workplace walk-throughs to assess the physical environment for, for example, areas with limited natural surveillance (like meeting and store rooms), areas that restrict movement or prevent workers maintaining their personal space, and potentially offensive posters or pictures.
They should also: assess how workers interact with each other, managers and third-parties in online work environments; and the use of social media for work purposes.
If members need training for their staff or assistance with policies, please contact the WR team on firstname.lastname@example.org, or on 8291 2000.