Key takeaway
- PBCUs must have an established prevention plan to address identified risks to the health and safety of workers and others, specifically concerning sexual harassment and sex or gender-based harassment in the workplace
- PCBUs should take adequate risk assessments, acknowledging those who are most at risk to sexual harassment and specific industry or business specific risks, to ensure all practical risks have been identified and are addressed
- Employers must take a proactive rather than reactive approach when managing the risk of sexual harassment and sex or gender-based harassment at work
- Businesses should ensure they are constantly reviewing their plans, acknowledging a changing workforce and industry specific risks to worker safety
A new Queensland law, effective 1 March 2025, has mandated sexual harassment prevention plans for businesses. PBCUs must now establish a prevention plan to address identified risks to the health and safety of workers and others, specifically concerning sexual harassment and sex or gender-based harassment in the workplace.
In order to comply with the Work Health and Safety Regulation 2011 (WHS Regulations), employers must proactively manage the risk of sexual harassment and sex or gender-based harassment at work.
Failing to prepare, implement or review a plan may result in the PCBU facing a fine of 60 penalty units (currently $9,678) for each instance of non-compliance.
To create a compliant sexual harassment prevention plan, PCBUs must ensure they have taken the appropriate development steps, which includes undertaking a risk assessment to identify risks.
As sexual harassment and sex or gender-based harassment are psychosocial risks, they must be managed in accordance with the WHS Regulations. The risk management process is set out in the Managing the risk of psychosocial hazards at work Code of Practice 2022 (the Code) which involves:
Identifying the risk of sexual harassment and sex or gender-based harassment – conduct a thorough evaluation of the workplace to find out what could cause harm
Assessing risks – understand the nature of the harm, how serious the harm could be and the likelihood of harm occurring
Controlling risks – implement the most effective control measures that are reasonably practicable in the circumstance.
Reviewing control measures – ensure they remain effective
In undertaking these steps, consultation must occur at every stage to allow for worker participation in the development of the plan to ensure that all risks have been considered and appropriately addressed.
In compliance with Work Health and Safety regulations, PCBUs have a responsibility to ensure that they create a comprehensive written prevention plan that identifies the risk control measures to manage risks if elimination is not practicable.
This involves taking into consideration factors that may uniquely impact a worker’s risk to their health and safety, especially concerning sexual harassment and sex or gender-based harassment in the workplace.
PCBUs should take the time to evaluate their workforce demographic to identify any person who may have an increased risk of sexual harassment. As identified by Work Health and Safety Queensland, there are factors that may increase the likelihood of a worker experiencing sexual and sex or gender-based harassment which include:
• workers under 30 years of age;
• LGBTIQA+ workers;
• women workers where most workers at the workplace are men;
• workers who are new to the workforce;
• workers who do not conform to traditional gender stereotypes;
• Aboriginal and Torres Strait Islander workers;
• workers with a disability;
• workers from culturally and linguistically diverse backgrounds;
• migrant workers;
• workers holding temporary visas; and
• people in insecure working arrangements (e.g. casual or labour hire).
In addition to workforce demographic, businesses should take into consideration characteristics of the workplace or work environment which may include:
• a workplace culture that permits inappropriate behaviour;
• a lack of diversity, generally, or in management positions;
• workers being exposed to people consuming alcohol;
• workers being exposed to third parties at the workplace; and
• work that is remote or isolated.
Understanding the unique aspects of your business and creating a bespoke sexual harassment prevention plan is required to meet your work health and safety obligations in fostering a safe workplace in accordance with WHS Regulations.
For a sexual harassment prevention plan to be compliant, it is necessary the plan:
• is in writing;
• sets out each identified risk;
• lists the control measures to manage each identified risk;
• identifies the factors, characteristics and matters considered by the PCBU in determining the control measures;
• describes the consultation process that was undertaken with workers;
• outlines the process for reporting sexual harassment or sex or gender-based harassment and the complaint handling procedures;
• is expressed in a way that is readily accessible and understandable to workers; and
• will be reviewed each time a report of sexual or sex or gender-based harassment is made, if requested by a health and safety representative or otherwise every three years.
Recognising that the physical and psychological harm associated with sexual harassment and sex or gender-based harassment can lead to significant social and economic costs for workers and the organisations, PCBUs should ensure they are maintaining compliance and constantly working towards best practice.
Conclusion
The Work Health and Safety regulator has the authority to issue on-the-spot fines (infringement notices), improvement notices, and prohibition notices for breaches of these obligations. PCBUs must follow the appropriate guidance in developing their sexual harassment prevention plans to ensure compliance with WHS regulations and obligations.
This push towards a proactive approach and adopting preventative measures will assist PCBUs in protecting themselves from potential breaches but also, as is the overall goal, improve work health and safety for all workers.
Contact our Workplace Relations experts for guidance and expertise in drafting, reviewing and implementing your sexual harassment prevention plan.
