Safe Work Australia have recently released Australia’s first comprehensive Work Health and Safety (WHS) guidance (the Guide) focusing predominantly on workplace sexual harassment. The Guide aims to support businesses and organisations in meeting their WHS duties and provides useful risk identification strategies for the purposes of preventing and responding to sexual harassment.
The Guide focuses on risk management as a critical tool necessary for employers to eliminate or minimise the health and safety risks of sexual harassment in the workplace. As part of an effective risk management strategy, the Guide highlights four key components that need to be fulfilled so far as ‘reasonably practicable’ to manage risk. These four components include hazard identification, associated risk assessment, the implementation of control measures to eliminate or minimise the risk, and regular review of control measures to ensure effective risk management.
The Guide also recognises that sexual harassment constitutes a ‘systemic risk’ with “industry, environmental and individual risk factors being present in every workplace”. Accordingly, the Guide emphasises that effective identification of hazards requires investigation of information at an industry, environmental, and individual level are all necessary and equally important in identifying the likelihood and risks of sexual harassment. For example, from an industry level, low worker diversity may be a contributing factor to associated risk.
When identifying hazards and collating information to ensure appropriate control measures are in operation, it is important that employers consult with workers, Health and Safety Representatives, and the relevant health and safety committee if one exists in their organisation. Consultation can result in identification of all hazards as information is based on knowledge and lived experiences of workers in the workplace. This lends itself to better risk management solutions. Hazard identification may be made simpler for employers if sexual harassment is equated with and recognised as a WHS issue. Additionally, if employers and employees alike, of all levels, attend workplace training on sexual harassment, workers may feel safe to raise concerns relating to workplace conduct issues and/or sexual harassment.
In responding to reports of sexual harassment, it is essential employers act promptly, following proper consultation procedure including: determining whether the person wishes to pursue their complaint formally, informally or in some other way, communicating the process to everyone involved (referring to both sides of the complaint and witness, if appropriate), protecting the victim by offering them support, informing those involved what support and representation is available, and ensuring all actions and decisions are documented and information is stored securely. Once these procedures have been adequately followed and done so in a way that ensures confidentiality for all parties involved, evaluations should be made to assess the effectiveness of risk management systems and to determine whether any adjustments should be made to improve the existing framework for identifying, managing, and controlling the risk of sexual harassment in the workplace.
Safe Work Australia’s Guide is useful because it contains clear examples of strategies to be implemented for risk management solutions, makes useful suggestions on how information may be gathered, promotes proactive, rather than reactive, sexual harassment prevention strategy. Finally, the Guide provides multiple methods employers and employees can utilise to ensure sexual harassment is being monitored during interactions exchanged between internal and external members of the workplace both face-to-face and online.
It is important to note that this is an additional layer of regulatory oversight. Sexual harassment may be dealt with in many ways, including under anti-discrimination laws, allegations that employers have breached contractual obligations and, now, by WHS regulators.
Future change on the Horizon?
The Victorian state government announced changes to the workplace safety framework which could introduce mandatory reporting of workplace sexual harassment in Victoria. Mandatory reporting would mean employers would be required to notify Worksafe Victoria of cases of workplace sexual harassment.
This WHS reform would likely pave the way for the rest of Australia in addressing the prevalent issue of sexual harassment in the workplace.