Sexual Harassment as a WHS Issue: Employer Duties Post-Respect@Work

Respect@Work Reforms and the Positive Duty

The Australian Human Rights Commission's Respect@Work report, released in 2020, recommended that employers be subject to a positive duty to prevent sexual harassment in the workplace. This recommendation was implemented through the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, which inserted a positive duty into the Sex Discrimination Act 1984 (Cth) with effect from December 2022.

The positive duty requires employers to take reasonable and proportionate measures to eliminate, so far as possible, sexual harassment, sex-based harassment, hostile workplace environments and victimisation related to a complaint. This is a proactive obligation, not a reactive one. An employer who responds appropriately when a complaint is made but does not take steps to prevent harassment in the first place does not satisfy the positive duty.

The WHS Overlap with Sexual Harassment

Sexual harassment is identified as a psychosocial hazard in Safe Work Australia's model Code of Practice. This means that, in addition to the Sex Discrimination Act positive duty, employers have WHS obligations to identify and control the risk of sexual harassment. These two legal frameworks operate concurrently and impose obligations that are similar in substance but differ in enforcement mechanism and remedy.

The WHS framework covers both employees and other workers including contractors and labour hire workers. It also covers the risk of harm to those workers from harassment by third parties including customers, clients and members of the public. In high-risk environments such as hospitality, retail and healthcare, where third-party harassment risk is elevated, the WHS obligation to manage that risk is clearly engaged.

Reasonably Practicable Controls for Harassment Risk

The WHS framework requires the employer to assess the risk of sexual harassment in their workplace and implement controls that are reasonably practicable. Higher-order controls are preferred over training and policy alone. This means addressing structural and environmental factors that create harassment risk, not merely responding to incidents after they occur.

• Work design changes: reducing isolated work, removing dark or unmonitored spaces, adjusting shift patterns that increase risk
• Third-party management: clear policies for dealing with customer harassment, removing persistent offenders from the workplace
• Manager accountability: making managers responsible for maintaining respectful workplaces, not just responding to complaints
• Accessible reporting: multiple reporting channels, including anonymous options, that workers can use without fear of retaliation
• Training: genuine, specific training on recognising and responding to harassment, not generic compliance tick-box exercises
• Leadership conduct: leadership behaviour that models respectful workplace culture, with clear consequences for those who do not

Adequacy of Complaints and Investigation Systems

Where a harassment complaint was made and the employer's response is in dispute, the expert analysis assesses whether the complaints system was accessible, whether the investigation was conducted properly, whether the worker was protected from retaliation during the process, and whether the outcome was proportionate to the findings. These are WHS system adequacy questions, not legal determinations of whether harassment occurred.

A complaint that was dismissed without investigation, or where the complainant was subjected to retaliation, represents a significant failure in the WHS system. Similarly, an investigation that was conducted by someone with a conflict of interest, or that failed to give procedural fairness, fails the adequacy standard. See related analysis in workplace bullying and WHS and the psychosocial hazards expert page.