In brief - In January 2021, Safe Work Australia released guidance materials addressing sexual harassment, workplace violence and aggression to assist employers to ensure that the workplace is free from sexual harassment, violence and aggression.

Sexual harassment

Safe Work Australia has defined sexual harassment as any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

Court decision - sexual harassment

The Full Federal Court has recently ordered an employer solicitor to pay damages to his former employee, plus costs, for sexual harassment at work, that the solicitor described as romantic conduct, like Mr Darcy in Pride and Prejudice. The conduct, which involved a number of sexual advances and sexual harassment, was found to have occurred at work, whilst the solicitor and his employee were in Sydney at overnight accommodation.

The new Safe Work Australia guide has now deemed the above conduct to a breach of the Work Health and Safety (WHS) Laws that presently exist in most jurisdictions in Australia.

The guide provides that, under the WHS laws, a workplace means a place where work is carried out for a business or undertaking that includes any place where a worker goes or is likely to be while at work.

The guide further states that sexual harassment can happen:

  • at a worker's usual workplace;

  • where a worker is working remotely, including if the person's workplace is their home;

  • in a place where the worker is undertaking work at a different location such as a client's home or contractor's home or work;

  • where the worker is engaging in work‑related activities such as conferences, training, work trips, work‑related corporate events or a social activity like a Christmas party; or

  • by phone, email or online such as through social media platforms.

Sexual harassment is not always obvious, repeated or continuous. Unlike bullying, which is characterised by repeated behaviour, sexual harassment can be a one-off incident.

The guide highlights that sexual harassment is a workplace hazard that is known to cause psychological and physical harm. Managing the risks of sexual harassment should be part of an organisation's approach to ensure the health and safety of all workers whilst at work.

Workplace violence and aggression

Safe Work Australia has also issued a guide on workplace violence and aggression. The guide provides that violence and aggression can be any incident where a person is abused, threatened or assaulted at the workplace or while they are carrying out work. For example, violence or aggression may happen:

  • at a worker's usual workplace;

  • where a worker is working remotely, including if the person's workplace is their home;

  • in a place where the worker is undertaking work at a different location such as a client's home or contractor's location; or

  • where a worker is engaging in a work‑related activity such as a corporate event or a work‑related social activity.

Further, workers may experience violence and aggression through text messages or through social media platforms.

Violence and aggression may look like conduct such as:

  • physical assault, biting, scratching, hitting, kicking, intentionally coughing or spitting on someone;

  • sexual assault or indecent physical contact;

  • harassment or aggressive behaviour that creates a fear of violence;

  • hazing or initiation practices for new or young workers;

  • gender violence;

  • violence from a family or domestic relationship that occurs at the workplace, including if that person's workplace is their home.

Duties under Work Health and Safety laws

Every person conducting a business or undertaking (PCBU) has a duty under the WHS laws to eliminate risks to health and safety of workers and other persons so far as is reasonably practicable. If it is not reasonably practicable to eliminate risks, they must be minimised so far as is reasonably practicable.

A worker under the WHS laws is anyone who carries out work in any capacity for your business including employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students and volunteers who carry out work.

A workplace under WHS laws means a place where work is carried out for a business or undertaking and includes any place where a worker goes or is likely to be while at work. This includes a worker's usual workplace, where the worker is undertaking work at a different location or engaging in a work‑related activity such as a work‑related corporate event.

Managing risks

To identify the potential for sexual harassment, violence or aggression, it is recommend that a risk assessment is conducted to assess the potential exposures to workers and others arising from the business or undertaking.

Once the hazards and risks have been assessed, then it is important to implement the appropriate safe systems of work and procedures with workplace policies that are implemented to ensure the health and safety of both workers and others as part of the business or undertaking.

The new Safe Work Australia guidance material demonstrates the importance of ensuring that staff understand what constitutes appropriate workplace conduct and is a reminder of the need to review workplace policies to ensure that they are up to date and reflect current community standards.

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Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126 (24 July 2020)

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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