For many years, employers have been required to provide employees with a workplace that is, so far are reasonably practicable, free from hazards to health and safety. While the introduction of the Work Health and Safety Act 2020 (WA) (WHS Act) has seen a number of significant changes introduced, this fundamental duty has not changed.
With the increased regulatory focus on psychosocial hazards in the workplace, there is now a greater awareness of the need for employers to take proactive steps to eliminate or minimise those hazards. The WHS Act defines health to include psychological health. This means that employers are required to take the same type of risk assessment approach to hazards which are a risk to employees’ mental health as they have taken to hazards to physical safety.
One of the risks to mental health which may have in the past been seen as “just” a human resources matter is sexual harassment. The recently released ‘ENOUGH IS ENOUGH’: Sexual harassment against women in the FIFO mining industry report issued after a WA Parliament committee enquiry and the Federal government Respect@Work: Sexual Harassment National Inquiry Report 2020 have put the spotlight on sexual harassment as a safety issue.
What this means for employers
These reports show the extent to which sexual harassment is prevalent in the workplace and how many victims, predominantly women, did not feel that they could report the harassment or, if they did report it, how poorly they thought their employer responded. Both reports highlighted the need for employers to take a proactive approach to recognise and prevent sexual harassment in the workplace.
To comply with the WHS Act, employers need to understand the risk of sexual harassment in their workplace and then identify the reasonably practicable control measures to eliminate or minimise the risk posed by sexual harassment. This could be as simple as starting with a survey to determine the extent of the problem and the types of harassment being experienced. From this information, employers can assess the risks and identify appropriate control measures. In line with the requirements in the WHS Act, employers will then need to consult with their health and safety representatives and workers about implementing a policy for managing the risk of sexual harassment.
Employers will also need a reporting system to manage complaints of sexual harassment. This reporting system will need to be trusted by employees so that they feel confident to report sexual harassment. There may be times when a complainant does not want their own complaint investigated. The employer will need to respect the views of the complainant but will still need to consider the complaint from a safety perspective. This will entail reviewing the information available, considering why existing controls had not prevented the sexual harassment and identifying additional or revised control measures.
The WHS Act makes it clear that employers cannot simply ignore the risk of sexual harassment. The two reports make it clear that employers may not understand the full extent of the problem at their workplace or have any processes in place to manage complaints. In the past, a solution to a complaint of sexual harassment was to move the complainant or offender but this was not an effective control measure and often resulted in repeat offending. An effective complaints management system will minimise the risk presented by serial offenders by addressing the harassing conduct.
Legislative change
The Work Health and Safety (Mines) Regulations 2022 now includes reporting requirements for any workplace incident that could have caused serious harm to a person. This is a very broad category of incidents and could include bullying and sexual harassment. It is possible that a similar reporting requirement could be introduced into the general regulations.
The Federal Labor Government has a platform to implement all of the recommendations of the Respect@Work report, including specific regulations for psychosocial hazards. Its platform will also allow affected workers, families and unions to prosecute for breaches of work health and safety laws and to put the onus on businesses and their owners to bear the onus of proving that they have taken reasonably practicable measures to prevent a work health and safety offence from occurring. There is no draft bill yet for these changes and implementation will require cooperation with the states and territories which have adopted the harmonised laws. Nevertheless, the platform shows what the Federal Government wants to achieve and the direction it is moving in.
Victoria has also recently announced its intent to restrict the use of non-disclosure clauses in settlement agreements involving sexual harassment matters. While no similar legislative change has been proposed for WA yet, we have seen some employers already take initiative in this area.
We expect that both the WA State Government and Federal Government will also look to implement recommended changes to equal opportunity legislation.
What employers should do now
The WHS Act is in place and all employers are required to comply with it. By taking a proactive approach to addressing the risk of sexual harassment in the workplace, employers can be ahead of the curve in relation to legislative changes. It also makes good business sense as potential employees will be more attracted to work for employers who are confronting this issue and who are committed to protecting employees from the risk of sexual harassment.
How we can help
We can assist you with meeting your legal obligations for compliance with the WHS Act by:
- completing gap-analysis of your current safety plans to manage psychosocial risks;
- drafting policies and procedures to ensure they are compliant with current WHS laws;
- providing advice in relation to workplace relations and safety; and
- training workers on sexual harassment and work, health and safety laws.
Our September client seminar will be focused on sexual harassment and bullying as a work health and safety issue.
A copy of the Report is available here.
This article was written by Erica Hartley, Partner, Rochelle Airey, Senior Associate and Jessica Haddad, Solicitor.
