New obligations introduced for Queensland employers to manage the risk of workplace sexual harassment

With a stated purpose of strengthening the obligation on employers to proactively manage workplace sexual harassment, the Queensland Government has now passed the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (Amendment Regulation).

The Amendment Regulation introduces two key changes to the Work Health and Safety Regulation 2011 (WHS Regulation), with the first key change having commenced on 1 September 2024.

The key changes are:

• Control measures: Requirement for employers to consider all relevant matters when implementing control measures in relation to the risk of sexual harassment or sex-based harassment (commenced on 1 September 2024)
• Prevention Plan: Requirement for employers to prepare a “Prevention Plan” to manage an identified risk to health and safety due to workplace sexual harassment or sex-based harassment (commences on 1 March 2025)

Matters to consider when implementing control measures

Part 3.1 of the WHS Regulation already requires persons conducting a business or undertaking (PCBUs) (e.g. employers) to implement control measures to manage psychosocial risks. This would include a risk of sexual harassment, sex-based harassment or gender-based harassment.

However, when determining the control measures to implement, employers are now required to specifically have regard to all "relevant matters", including:

• the characteristics of workers, such as their age, gender, sex, sexual orientation or disability; and
• the characteristics of a workplace or work environment, for example, workplace culture, systems of work, a lack of diversity, or other matters about the workplace that may affect a person’s behaviour in relation to a worker.

Risk assessments should expressly refer to these matters to evidence that they have been considered.

The Amendment Regulation recognises that flexibility is needed for different workplaces and worker characteristics, and the specified characteristics are intended to provide an example of matters that could be considered by employers when determining the control measures to implement.

For example, specific characteristics could include:

• industries where there is a high proportion of junior employees who are females;
• workplaces where employees are required to work in close proximity to others for extended periods of time (e.g. FIFO); and
• workplaces with a higher number of workers with a disability or migrant workers.

Employers must also review and revise the control measures if a person reports sexual harassment or sex-based harassment in the workplace. This requires employers to have appropriate reporting processes and communication between human resource and WHS teams to ensure that the trigger for review is recognised.

Requirement to prepare a Prevention Plan

From 1 March 2025, PCBUs must prepare a Prevention Plan to manage an identified risk to the health and safety of workers from workplace sexual harassment, sex-based harassment or gender-based harassment.

The Prevention Plan must:

• be in writing and state each identified risk;
• identify the control measures implemented, or to be implemented, to manage each identified risk;
• identify the matters considered in determining the control measures;
• describe the consultation undertaken with workers;
• set out the procedure for dealing with reports of harassment at work, including but not limited to how a person may make a report, how the report will be investigated, and how the person will be informed of the results of the investigation;
• be expressed in a way that is readily accessible and understandable; and
• be reviewed every three years or sooner if a report of sexual harassment is made or if a health and safety committee or representative requests a review.

Critically, employers will be exposed to civil penalties of up to $9,678 (60 penalty units, but the maximum penalty can be increased annually) for failing to:

• implement a Prevention Plan;
• take reasonable steps to ensure workers are made aware of the Prevention Plan; or
• review the Prevention Plan as required.

Again this means there needs to be a process for review particularly in large workplaces that may have a high number of complaints. Noting the complaint does not have to be substantiated to trigger a review.

How are these requirements different to the current obligations imposed on employers?

In December 2022, a “positive duty” was introduced requiring employers and PCBUs to eliminate workplace sexual harassment, sex discrimination and sex-based harassment.

The new requirements are in addition to those obligations and require employers to have regard to specific matters when implementing control measures. Further, the introduction of a Prevention Plan is a new obligation that while many employers may address in part through their risk assessments, may not meet all the elements.

With the increasingly stringent regulations being introduced in this area, we expect to see heightened oversight and attention by the WHS Regulator to ensure that employers are taking the necessary steps to prevent sexual harassment in the workplace. It is now more important than ever that employers take these issues seriously and implement steps to ensure the adequacy of their work practices and procedures.