Sexual harassment and reporting under workplace health and safety laws
By Rosemary Roach and Nicholas Beech
Increasingly, the dangers of psychosocial hazards in the workplace are gaining recognition. These are aspects of work and work situations which can lead to psychological or physical harm. Sexual harassment, a known psychosocial hazard, has had a particular spotlight on it recently as governments and regulators grapple with how to address the risks and potential harm arising from sexual harassment in the workplace.
One identified problem has been the lack of meaningful data from workplaces about the prevalence of sexual harassment and the previous focus on dealing with the issue more as an employment, rather than a serious workplace health and safety matter.
Capturing incidents or occurrences that involve sexual harassment is a key step in risk managing the hazard.
In this article, we briefly look at the present state of the reporting systems in place under workplace health and safety regimes and plans for improvement.
Notifiable incidents under workplace health and safety laws
Typically, workplace health and safety legislation only deals with incidents that result in actual harm to a person. Furthermore, for psychological harm to be captured it needs to meet the criteria of an injury or illness that:
- requires the person to have immediate treatment as an inpatient in a hospital; or
- occurs in a remote location and requires the person to be transferred urgently to a medical facility for treatment; or
- in the opinion of a medical practitioner is likely to prevent the person from being able to perform their normal work for 10 days or more.
An incident or occurrence involving sexual harassment, absent consequential harm or incapacity, or resulting harm that does not meet one of these general injury or illness classes, is generally not notifiable or reportable.
However, an incident or occurrence of sexual harassment itself can clearly be a serious issue and adversely impact workplace health and safety.
Changes being made to capture psychosocial hazard incidents and occurrences
There is now a push to expressly capture incidents or occurrences of psychosocial hazards, including sexual harassment.
With the recent introduction of its new work health and safety (WHS) laws, Western Australian mine operators must report an occurrence if it could have caused serious harm to a person. Similarly, an operator of a Western Australian petroleum or geothermal facility must ensure the regulator is notified of an occurrence or incident that did not cause, but could reasonably have been expected to cause:
- the death of, or serious personal injury to, a person; or
- a worker to be incapacitated from performing work for a period of three or more days.
In determining whether an occurrence or incident involving a psychosocial hazard could have caused or could reasonably have been expected to cause serious harm to a person, guidance issued by the Western Australian regulator suggests consideration be given to factors including the following.
- Could the incident have resulted in the person being unable to conduct the duties they were performing immediately beforehand for at least three days or required a modification of work arrangements?
- Has there been or may there be any lost time associated with the incident?
- Has a registered medical practitioner formed the opinion that the incident could have resulted in serious injury or illness?
- Does the incident involve an alleged sexual assault, including rape?
In Victoria, proposed changes to the Occupational Health and Safety Regulations 2017 will impose stricter obligations on employers in managing psychosocial hazards. When implemented, these changes will require employers to report any ‘reportable psychosocial complaints’ received during a specified period. A reportable psychosocial complaint includes a complaint involving aggression, violence, bullying or sexual harassment.
Although not specifically directed to sexual harassment, in the Australian Capital Territory, changes proposed by the Workplace Legislation Amendment Bill 2022 expressly include a ‘sexual assault incident’ as a notifiable incident. A sexual assault incident is an incident, including a suspected incident, in relation to a workplace that exposes a worker or any other person at the workplace to sexual assault. The duty to notify is not limited by conviction or proof – a suspicion is sufficient for the matter to be notified to the regulator.
What does this mean for business?
Determining whether an incident or occurrence involving sexual harassment is presently notifiable or reportable to WHS regulators remains a complicated and largely subjective task requiring an assessment of what might have happened in terms of a potential injury or illness resulting from the incident or occurrence.
Even in these instances, the duty remains to make the notification or report immediately and therefore before any investigation is undertaken or any disciplinary action is imposed in relation to the incident.
The proposed changes in the ACT and Victoria will provide some greater certainty around the applicable criteria. However, until they are in place and further clarification is provided in other jurisdictions, it is likely to be best practice to adopt an inclusionary approach to reporting and only exclude from reporting those incidents and occurrences involving sexual harassment that clearly do not meet the present criteria of an illness or injury, as set out above.
The capturing of this data should also benefit overall risk management of psychosocial hazards.
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