In light of recent legislative changes in the United Kingdom, from 26 October 2024, UK employers have a new duty to take reasonable steps to prevent sexual harassment of workers in the course of their employment.
This caused us to reflect on the key lessons that can be drawn from Australia’s experience with very similar legislation introduced in December 2022.
The aim of the new(ish) framework is for employers to anticipate scenarios when their workers may be subject to workplace sexual harassment and take positive action to prevent them.
Employment Law Partner Rachel Bernasconi and Work Health and Safety Partner Sarah Goodhew give some practical and real-life reflections below based on their experience in assisting clients to understand and operationalise the new duty from an employment law and work health and safety perspective.
What does the positive duty to prevent sexual harassment of or by their workers mean for employers in Australia?
Rachel: The duty requires all organisations to take “reasonable and proportionate” measures to eliminate unlawful workplace sexual harassment, sex-based harassment, sex discrimination, hostile work environments on the ground of sex, and victimisation related to complaints about these issues. The big shift here is that it’s no longer enough for employers to wait for complaints to arise and mitigate incidents of harassment—they have to actively prevent them through risk assessments and other measures such as training and creating safe reporting systems.
Sarah: This duty aligns closely with existing work health and safety (H&S) obligations for organisations to ensure, so far as is reasonably practicable, that workers and other persons are not exposed to risks to their psychological or physical health and safety. This includes psychosocial risks such as sexual harassment and sex or gender-based harassment. In Queensland, there are specific regulations relating to the control measures to be implemented to address these risks.
How have Australian employers adapted their practices to meet this duty?
Sarah: Organisations are integrating what have historically been two separate functions, drawing on their experiences from the traditional ‘HR’ and ‘safety’ functions. This includes integrating sexual harassment prevention into their broader safety management systems and utilising existing frameworks such as their H&S risk assessments and management processes. This can include regular audits, clear reporting mechanisms, and the use of technology to enhance prevention efforts. Many organisations have implemented anonymous reporting channels and use data analytics to identify trends and areas needing attention or to assess the effectiveness of control measures. Previously, safety teams have taken a much more structured approach to compliance issues than their HR counterparts, but we are seeing the more rigorous safety-oriented risk management approach being applied in the employment context more and more.
Proactive organisations are embedding this approach so that there is transparent reporting to Board committees and integration with audit, risk and whistleblower frameworks.
Rachel: We’ve seen engaged employers use a multi-disciplinary approach (i.e., including business stakeholders from legal, HR, safety, operations, and leadership) to proactively identify how the risks of sexual harassment might arise in each part of their businesses, what control measures are already in place and how those measures can be enhanced to avoid or mitigate risks. Quite often they are taking this approach more broadly in relation to managing workplace psychosocial risks (of which workplace sexual harassment is just one). We’ve also seen a change to the approach some organisations are taking to their training programs to go beyond the traditional annual tick-box exercise. Organisations that are genuine in wanting to proactively address sexual harassment risks are implementing more comprehensive programs by including mandatory leadership training (including at the Board level), regular refresher courses for all employees, and bystander intervention training. This also has implications for the frequency and updating of training modules, to capture learnings following any incident.
In addition, many Boards and senior leadership are taking a more proactive approach to acquiring knowledge and keeping up-to-date on their legal obligations in relation to sexual harassment, as well as understanding how their business controls this risk with a regular review as to the effectiveness of implemented measures.
What challenges have you seen Australian employers face in implementing these changes?
Rachel: The Guidelines from the Australian Human Rights Commission (the first instance regulator) (AHRC Guidelines) are so comprehensive (and to some extent impractical to achieve for businesses that operate in the real world) that many employers are overwhelmed. We say, make a start—if a regulator comes knocking, or employees are asking what their organisation is doing, you will be better placed if you have done something rather than nothing. We also recommend prioritising your actions in recognition of the fact that you can’t do everything immediately—work out your primary and secondary priorities based on risk, resources, and timing.
Sarah: In addition to the extensive AHRC Guidelines, there are also a variety of H&S guidance materials from regulators in various states that address both psychosocial hazards and sex and gendered based harassment. The overwhelm that Rachel has mentioned is very much seen on both the traditional safety and employment sides. I agree with Rachel that starting is important—organisations should start with a risk assessment and follow the health and safety risk management process to implement control measures based on the highest H&S risks in their business, using the hierarchy of controls.
The AHRC Guidelines encourage risk assessments to identify where sexual harassment may occur. Do you have any tips for employers to consider when undertaking these risk assessments?
Sarah: Yes, follow the risk management process for H&S risks. In Queensland, the new regulations that commenced on 1 September 2024 require a review of control measures following any report—even if unsubstantiated—of an allegation of sexual harassment or gender-based harassment. Time will tell how onerous such a requirement may be. A risk assessment should be reviewed on a regular basis, which will be informed by the levels of exposure and likelihood of the risk in your business.
Rachel: Yes, the approach I’ve outlined above to identifying risks is helpful because it ensures relevant stakeholders are at the table and have input. We also recommend this process is conducted regularly—this can’t be a ‘set and forget’ process that you do once and say you’re done.
Do the Australian laws cover harassment from customers, clients and other third parties, and do you have any tips for employers to address this?
Rachel: Yes, and it also includes harassment by employees of those third parties in a work setting. We are encouraging clients to build this into their risk assessments, so that they are thinking beyond the employee/employee harassment scenarios to all interactions that can occur in a work setting and how to mitigate those risks.
Sarah: Yes, the H&S duties in Australia extend to a very broad definition of ‘worker’, as well as to ‘other persons’ in the workplace. From a safety perspective, we are giving the same advice as Rachel to build this into the risk assessment process and into the implementation of control measures.
The key takeaways from these reflections are:
- Start somewhere and prioritise appropriately: Given the comprehensive nature of the guidance materials, it’s better to start the process and show a genuine effort rather than being overwhelmed and do nothing. Prioritise actions based on your organisation’s specific risks, resources, and timing.
- Thorough risk assessments are key: These assessments should identify the particular risks within each organisation’s unique working environment (e.g., where there may be power imbalances, involvement of alcohol, or employee interactions with clients, customers, and other third parties).
- Take a holistic approach: It is not enough to simply update policies. Employers need to take a range of steps to show compliance and implement a proactive risk management approach.
- Board and senior leadership buy-in is crucial (and legally required to discharge their individual proactive officer due diligence obligations): Senior role models set the tone and drive meaningful change throughout the organisation. Without it, efforts will lose momentum.
- Integration with existing systems: Employers don’t need to reinvent the wheel. Instead, they should integrate sexual harassment prevention into their broader safety management systems, utilising existing frameworks like H&S risk assessments and management processes.
- Robust and clear reporting systems are essential: Employers should consider anonymous reporting channels and how they can use reporting systems to gather data, spot trends, and pinpoint risk areas. Businesses should ensure reporting up to Board level about sexual harassment matters at a regular cadence.
- Adopt a multi-disciplinary approach: Employers should involve stakeholders from various departments (e.g., legal, HR, safety, operations, leadership, audit and risk) when identifying risks and developing prevention strategies.
- Ongoing review: Compliance is not a one-off task. Employers must regularly review and update their prevention strategies to ensure they remain effective, adapting them based on feedback, new risks, and/or incidents. Boards and senior leadership need to ask the right questions to understand what is going on in the business and what can be done better.
What are considered ‘reasonable steps’ will vary depending on the employer’s size, available resources and risk factors. But employers generally need to: (1) consider potential risks; (2) develop comprehensive action plans to address and mitigate such risks; and (3) implement proactive measures to prevent such incidents occurring. Harassment is not just an employee relations issue—it is a health and safety issue, and a reputational one, and needs to be treated with the utmost seriousness.
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