On 1 September 2024, new and additional obligations came into effect in Queensland requiring  all employers to proactively manage the prevention of sexual harassment and sex or gender-based harassment in the workplace.

Building on the Respect@Work reforms which found that workers have a human right to be free of sexual harassment, the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 further recognises  sexual harassment and sex or gender-based harassment as a critical work health and safety issue. 

While federally positive duties have been imposed into the Sex Discrimination Act 1984 (Cth) and the Australian Human Rights Commission are empowered to inquire into and ensure compliance with the positive duty, the regulatory response in Queensland has firmly made prevention a work health and safety obligation. 

Employers must now manage a psychosocial risk that is or includes a risk of:

• Sexual harassment, being unwelcome conduct of a sexual nature which makes a person feel offended, humiliated, or intimidated, where that reaction is reasonable in the circumstances. It can take various forms.

• Sex or gender-based harassment, being any unwelcome conduct of an offensive or demeaning nature by reason of the person's gender, sex, or sexuality, in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

In determining the control measures to implement to manage these risks, an employer must have regard to all relevant matters in relation to the risk of sexual harassment or sex or gender-based harassment. Under the changes to the Work Health and Safety Regulation 2011 (Qld), this now includes: 

1. Matters relating to characteristics of the workers, such as the workers:

a.    age;

b.    gender;

c.    sex;

d.    sexual orientation;

e.    disability; and

2. Matters relating to characteristics of the workplace or work environment, such as:

a.    a work environment that may give rise to a workplace culture, or system of work, in which unacceptable or inappropriate behaviour is, or may be, permitted; and

b.    a lack of diversity in the workplace generally or in particular decision-making positions; and

c.    other matters about the workplace or work environment that may affect a person’s behaviour in relation to a worker.

It is essential that employers view the risk of sexual harassment through a work health and safety lens as one that can be actively prevented as opposed to only managed once harm occurs.

If an employee reports sexual harassment or sex or gender-based harassment at work, employers are now required to review and, as necessary, revise the control measures. 

It is important for employers to consider what now constitutes a "report" - it may mean a complaint or a disclosure of any form about the harassment made to the employer.

Employers should take steps to review their response to sexual harassment or sex or gender-based harassment at work. We recommend that at a minimum employers:

• Consider prevention under a work health and safety focus;

• Develop appropriate policies to prevent sexual harassment or sex or gender-based harassment;

• Conduct a risk assessment of sexual harassment or sex or gender-based harassment at work, including consultation with workers;

• Identify and review control measures in place;

• Ensure processes to report sexual harassment are robust, support employees and enable visibility to human resources, work health and safety staff and executives of reports received;

• Update and deliver prevention training to executives and employees; and

• Develop a process to review and revise control measure, as required when reports are received.

In March 2025, further changes to Queensland's regulatory response will take effect to implement new duties to prepare detailed prevention plans, make workers aware of the plan and how to access it and ensure the plan is reviewed after every harassment report received.

It is important employers understand and review their frameworks to ensure they meet these new obligations. The team at Colin Biggers & Paisley will provide ongoing updates as these changes take effect.