Welcome to the HWLE National Safety Newsletter

23 February 2024

Sexual and gender-based harassment – code of practice

SafeWork Australia published the new Code of Practice (CoP) in December 2023 on sexual and gender-based harassment.

The CoP sets out that Sexual Harassment is:

“any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, where a reasonable person would anticipate that reaction in the circumstances.”

Further, sexual harassment can be a form of gender-based harassment, based on a person’s gender, sex or sexuality.

Where can sexual harassment occur? The CoP states that sexual harassment at work can occur:

  • at a worker’s usual workplace;
  • if working remotely, at their home or a client’s home;
  • when engaging in work related activities such as conferences, training, work trips, work related events or social activities like a work Christmas Party;
  • by phone, email or online; and
  • at workers provided accommodation provided at Fly in, Fly out sites.

The CoP refers to the Work Health and Safety (WHS) Laws and the requirements of the Person Conducting a Business or Undertaking (PCBU) to conduct a risk assessment to ensure that workers and other persons are not exposed to risks to their psychological or physical, health and safety.

Further, the CoP refers to the duties of Directors and Officers of a PCBU to exercise due diligence to ensure that the PCBU (business) is compliant with its WHS duties.

Respect at work – positive duty

The Respect at Work legislative amendments commenced in 2023. The new laws created a positive duty in the Sex Discrimination Act (Cth) to prevent sexual harassment and other unlawful conduct.

The Sexual Harassment Code of Practice identifies that the Respect at Work requirements operate concurrently with the WHS duties. PCBU’s are required to take reasonable and proportionate measures to eliminate, as far as possible, discriminatory conduct that is unlawful, including:

  • sex discrimination in a workplace context;
  • sexual harassment in connection with work;
  • subjecting a person to a hostile work environment on the grounds of sex; and
  • certain acts of victimisation.

Every PCBU must now take steps to conduct a risk assessment to consider the culture of the workplace and implement reasonably practicable measures to manage the risk of sexual and gender based harassment to workers and others health and safety, arising from the conduct of its business.

Psychosocial hazards – risk assessments

The Psychosocial Hazards at Work codes of practice and regulations have commenced in most jurisdictions around Australia. The requirement to conduct your psychosocial risk assessments have commenced in the following States and Territories:

  • New South Wales commenced October 2022;
  • Queensland commenced April 2023;
  • Western Australia commenced December 2022;
  • South Australia commenced December 2023;
  • Northern Territory commenced July 2023; and
  • Tasmania commenced January 2023.

The regulations require each PCBU to consider the hazards to a person’s health and safety arising from:

  • the design or management of work;
  • a work environment;
  • plant at a workplace; and
  • workplace interactions or behaviours.

The requirements to assess the workplace interactions and behaviours are directly related to the sexual harassment code of practice. Undertaking a risk assessment covering both the sexual harassment code of practice and psychosocial hazards regulations and codes of practice, in your jurisdiction, will provide a sound basis to manage these new requirements.

Occupational health and safety act prosecution – sexual harassment – Victoria

In Melbourne, a Director, two companies and a worker were prosecuted under the Occupational Health and Safety Act (OHS Act) for failing to ensure the health and safety of employees, due to the sexual harassment of employees at the workplace.

The conduct of harassment took place over a two-year period at two cafés operating in Melbourne.

The sexual harassment included touching, groping and sexually intrusive and suggestive comments. The companies had an online bullying and harassment policy only, without any avenue of reporting harassment, other than to the one Director.

The Director of the business was convicted and fined $40,000. The companies were fined, one in the amount of $140,000 and the other company $110,000.

Bullying and harassment by chef at Red Hill – Victoria

Recently, a restaurant at Red Hill on the Mornington Peninsula faced the Magistrates Court, where it was fined $4,000 and ordered to pay costs of $6,400.

The prosecution was commenced from a complaint to Worksafe Victoria, from which the Worksafe Inspectors conducted a comprehensive investigation into the alleged conduct at the restaurant, where the head chef would verbally abuse two apprentices, tape cabbage leaves to the head of one apprentice and force another to wear a plastic bag over his head.

The restaurant pleaded guilty to breaching the OHS Act for failing to ensure the health and safety of two 17-year-old apprentices, due to the bullying and harassment by the head chef from October 2020 to June 2021.

Work health and safety penalties increased

In July 2023, the Model WHS laws were amended to increase the penalty for alleged breaches of the WHS laws.

The amendments included inserting gross negligence into the reckless provision of section 31 of the WHS laws and doubling the imprisonment upon Directors and Officers from five to ten years imprisonment, with a maximum penalty of $1 million. A corporation will face a monetary penalty of $10 million.

The penalties for the offence of Industrial Manslaughter are 20 years for an individual and $18 million for a corporation.

The Victorian Supreme Court has sentenced the first company under its Industrial Manslaughter offence in the OHS Act of Victoria. LH Holding Management Pty Ltd, a company operating a stone masonry business at Somerton in Victoria was convicted and fined $1.3 million for industrial manslaughter, when the Director of the business was operating a forklift that tipped over causing fatal injuries to an adjacent subcontractor. The Director pleaded guilty to the lesser offence of reckless conduct and was sentenced to 200 hours community corrections order and ordered to complete a forklift operators course.

The company and its Director were also ordered to pay $120,000 in compensation to the deceased worker’s family.

Failure to take reasonable precautions

The model laws have also introduced the following conduct requirements of the PCBU, in that the safety regulator will be able to allege that a failure to take reasonable precautions, may be evidenced by the fact that, the conduct constituting the offence was substantially attributable to:

a) inadequate management, control or supervision of the conduct of one or more of the body corporate’s employees, agents or officers; and
b) failure to provide adequate systems for conveying relevant information to relevant persons in the body corporate.

Each State and Territory around Australia are presently considering the above amendments.

In New South Wales, the above provisions are presently proposed to be incorporated into the WHS laws.

It is recommended that companies review their reporting systems to ensure the required information is being provided to the Directors and Officers of the business, which will form part of the Directors and Officer’s WHS Due Diligence system.

HWL Ebsworth’s Safety team is experienced in advising employers and on all aspects of the SafeWork Australia’s CoP. If you require assistance with the new CoP, please contact the Safety team, click here to view contact details.

This article was written by Greg McCann, Partner.

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