Sexual harassment prevention plans

While businesses have long held responsibilities to prevent harassment under anti-discrimination and workplace laws, recent amendments to the Workplace Health and Safety Regulation 2011 (‘the Regulations’) have introduced more specific and onerous duties.

The introduction of these new laws makes it clear that sexual harassment and sex or gender-based harassment are WHS hazards and must be managed like any other workplace hazard. A key part of this change is the obligation for businesses to prepare and implement a ‘prevention plan’.

What is a prevention plan - and do you need one?

The Regulations require businesses to identify reasonably foreseeable hazards that could give rise to a risk to health and safety and to manage risks of sexual and sex or gender-based harassment. The business needs to think proactively about risks and control measures that can be put into place to prevent these types of harassment from occurring in the first place, as opposed to how the business reacts after something happens.

A prevention plan is a risk management tool that demonstrates your business has taken positive steps to find and control risk of sexual harassment and sex or gender-based harassment. This includes:

• identifying hazards and risks of sexual and sex or gender-based harassment;
• assessing the likelihood and severity of those risks;
• implementing control measures to eliminate or reduce those risks; and
• reviewing their effectiveness over time.  

Importantly, the obligation to prepare a prevention plan applies where there is an ‘identified risk’ of sexual harassment or sex or gender-based harassment. If no such risk has been identified, then a prevention plan is not required.

How to determine if there are risks

Broadly, ‘sexual harassment and sex or gender-based harassment’ occurs when a person engages in unwelcome sexual, sex or gender-based behaviour that is intended to offend, humiliate, or intimidate - or where a reasonable person would expect that it might have this effect.

‘Sex or gender-based harassment’ is unwelcome conduct of a demeaning nature based on a person’s sex or gender, again, with the intention or likely impact of offending, humiliating, or intimidating the other person (or where a reasonable person would expect that it might have this effect).

Examples of these types of harassment could include (but are not limited to):

• offensive, derogatory or negative comments about a person’s sexual orientation (such as slurs);
• suggestive posters or material being displayed in the workplace;
• sexually explicit communication to another colleague;
• inappropriate touching;
• perpetuating gender stereotypes in the workplace; and/or
• commenting on what another worker is wearing in a sexual manner.  

To understand if a business has risks of sexual harassment or sex/gender-based harassment, the business will need to consider and understand:

• behaviours that may constitute these types of harassment;
• the environmental and situational factors that may contribute;
• the groups of people who are at higher risk of experiencing this type of harassment; and
• the types of workplaces that may be at higher risk.

Common risk indicators

According to WorkSafe, workers at higher risk of experiencing harassment include:

• workers who are new to the workforce;
• young workers – particularly those under 18 years of age who are more likely to be affected by power imbalances and have less experience recognising and dealing with these types of behaviours and may accept it as normal;
• LGBTIQA+ workers;
• workers who do not conform to traditional gender stereotypes;
• workers with a disability;
• workers from culturally and linguistically diverse backgrounds;
• migrant workers;
• workers holding temporary visas; and
• workers in insecure working arrangements (casual or labour hire).  

Characteristics of workplaces with an increased risk of sexual harassment and sex or gender-based harassment include workplaces:

• with ‘high value’ workers - for example, where the workplace may be reluctant to address harassment or misconduct by individuals due to concerns about the persons perceived value to the business (and any potential loss that would occur if action was taken against that person).
• with strict hierarchical structures - for example, there are limited avenues for an individual to raise concerns particularly if the behaviour involves someone in a senior position. In these settings, reporting misconduct by a manager or supervisor might be perceived as insubordination.
• with a culture of sexism, homophobia and/or norms that support harassment – for example, environments where sexist jokes, homophobic remarks, or inappropriate comments about menstruation are common.
• where breaking rules and breaching policies are tolerated - for example, breaking rules in other aspects of the business such as safety or the use of resources therefore indicating that other inappropriate behaviour may not be addressed.
• with power imbalances - for example, where one gender dominates leadership roles, influencing decision-making and organisational culture.

If your business shares any of these characteristics, you likely have a risk of sexual harassment and sex or gender-based harassment and an obligation to prepare a prevention plan.

For further assistance with identifying and managing risks of workplace sexual harassment and sex or gender-based harassment, WorkSafe has developed a comprehensive Guide.

What should be included in a prevention plan?

The Regulation specifies that the prevention plan must be in writing and must:

• 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 process
• set out the procedures for dealing with reports of sexual harassment and sex or gender-based harassment at work; and
• be set out and expressed in a way that is readily accessible and understandable to workers.

Drafting your own plan

Creating a prevention plan can feel daunting, however, WorkSafe Qld has developed a template plan that can be used to guide businesses. The template is interactive and designed to meet all the mandatory requirements under the WHS Regulation. An example of a completed prevention plan is also available.

While using the template isn’t mandatory, it is a straightforward way to demonstrate compliance. If you choose to develop your own plan or use existing documentation, it must include all the required elements.

It is also important to note that a prevention plan is not the same as a sexual harassment or sex and gender-based harassment policy or complaints procedure. Policies and procedures set expectations around workplace behaviour and address how the business will respond after an incident, whereas a prevention plan is about actively controlling risks before they occur. Each plays a role, but only the prevention plan addresses your specific duties under the WHS Regulation.

Where to get started?

Consultation

It is not up to one person to decide whether there are risks of sexual harassment or sex or gender-based harassment in the workplace. Under WHS laws, businesses are required to consult with workers who are likely to be directly affected by health and safety matters at the workplace, including when identifying and managing health and safety risks.

Consultation means engaging with your workers and any health and safety representatives to ensure that those who are affected by matters relating to health and safety have an opportunity to express their views or raise any issues, and thereby, contribute to the decision-making process.

How you consult will depend on your business. For example, it may be done with all workers at regular meetings, through an elected health and safety representative or through the workplace WHS committee.

More information about consultation is available from WorkSafe QLD.

To find out more, contact HIA's Contracts and Compliance team

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