Pressure on Qld employers to manage risk of workplace sexual harassment

New work health and safety legislation has come into effect that will place a greater demand on Queensland employers to proactively manage the risk of sexual harassment in the workplace.

Last weekend, the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 and the Code of Practice on Managing Psychosocial Hazards at Work officially came into effect in Queensland.

The changed regulations enhance the reforms stemming from the Respect@Work: Sexual Harassment National Inquiry.

To unpack what the new legislation means, HR Leader spoke to Alanna Fitzpatrick and Dominic Fleeton, partners within global law firm K&L Gates’ labour, employment and workplace safety practice team.

HR Leader: What do these changes mean for Queensland employers?

Alanna Fitzpatrick: Employers have always had an obligation to ensure that workers are not exposed to psychological harm in the workplace. However, it was recognised in the many reviews of the model Work Health and Safety Act that the employers’ role was poorly understood, and regulators lacked a meaningful framework to assess and monitor compliance with this obligation.

The changes to the WHS regulation and the code of practice make it explicitly clear what employers need to do to comply and will provide the tools for enforcement at the regulatory level. Different to some other states, it may be an offence in Queensland to fail to comply with a code of practice, unless the duty holder can show that they adopted an alternative way to manage the risk that provided at least equivalent protection. For this reason, Queensland employers should closely review the code of practice to ensure they understand their obligations.

HR Leader: What impact will this have on Queensland employees?

Alanna Fitzpatrick: Employees can expect to see their employers introduce a greater focus on mental fitness and wellbeing in their workplace. Employees should also expect to participate in consultation processes with their employer to help identify risks, discuss control measures and provide feedback on the effectiveness of those measures.

HR Leader: What is your advice to Queensland employers in light of the legislation coming into effect over the weekend?

Alanna Fitzpatrick: The first step for any Queensland employers is to educate themselves about psychosocial hazards in the workplace and familiarise themselves with the code of practice. After becoming familiar with the concepts, the next critical step is to take stock of where the organisation sits in terms of compliance, identify the gaps and then prioritise the areas for improvement, based on a risk analysis.

High-frequency or high-consequence psychosocial hazards should be addressed first. Most organisations lack the resources to tackle everything all at once, so our advice is to approach the management of psychosocial hazards incrementally and build on existing controls. The other critical piece is to ensure that the thought process and reasoning is documented in an implementation plan.

HR Leader: Are other states expected to follow suit? Please explain.

Dominic Fleeton: The model psychosocial regulations are already in force in NSW, Western Australia and Tasmania.

In addition:

• the Commonwealth version of the model regulations and code of practice will also come into effect on 1 April; and
• the Northern Territory has just announced that it will adopt the model regulations and code of practice with effect from 1 July this year.

In the first half of 2022, the Victorian government released, for public comment, an exposure draft of proposed psychosocial regulations, which departed, in a number of ways, from the approach adopted in the model regulations. The government has yet to publicise its response to the feedback received during the public comment period or any revised version of its proposed regulations. We expect that will occur later this year.

HR Leader: Psychosocial hazards are becoming a significant concern for Australian business owners; how can they ensure they’ve got appropriate procedures in place to help mitigate these?

Dominic Fleeton: The first step is for business owners to arrange for a comprehensive psychosocial risk assessment to be conducted to ensure that they have identified all of the psychosocial hazards arising from their business, the severity of each of those risks and the potential controls for eliminating or minimising those risks.

For many risks, the control measures will require particular procedures to be adopted (or existing procedures to be refined).

For the key risks identified, business owners may find it useful to prepare a prevention plan which clearly sets out the actions to be taken, the person responsible for each action and the date by which each action needs to be taken, as that will make it far easier to implement the outcomes of the risk assessment.

HR Leader: Is there anything else you’d like to add?

Dominic Fleeton: It is critical that organisations do not forget the need to consult with their workers when identifying psychosocial hazards, assessing the risks arising from those hazards and making decisions about ways to eliminate or minimise those risks.

The need to consult often falls off the radar. However, in addition to being a legislative requirement, consultation is usually a beneficial exercise because it helps ensure that decisions are informed by a broader range of information. Many control measures for psychosocial risks (such as role redesign) will have adverse industrial relations or employment implications for the organisation if they are not carefully managed.