New reforms will require employers with employees in Queensland to implement proactive measures to prevent workplace discrimination and harassment. The reforms, which impose the strictest requirements of any Australian jurisdiction, require businesses to take proactive steps in eliminating and preventing discrimination, harassment and other objectionable conduct in the workplace as far as possible.
In particular, employers will be required to consult with employees and implement a written “prevention plan”, outlining the steps that they will take to manage the risk of sexual harassment or sex or gender-based harassment at work.
Need to know
- By 1 March 2025, all businesses with employees in Queensland (no matter the size of the business) must implement a prevention plan to manage identified risks to the health or safety of workers, or other persons, from sexual harassment or sex or gender-based harassment at work.
- Businesses must consult with workers in implementing the prevention plan, in the same manner as businesses are required to consult with workers about the management of physical and other psychosocial risks to employees’ health and safety.
- Commencing on 1 July 2025, amendments to the Anti-Discrimination Act 1991 (Qld) introduce a positive duty to eliminate unlawful discrimination and other objectionable conduct. This goes well beyond the recent changes to the federal Sex Discrimination Act 1984 (Cth) which imposed a positive duty on employers to eliminate sexual harassment and sex discrimination, but does not extend to other forms of discrimination or harassment.
- The Queensland Human Rights Commission (QHRC) has been given additional powers to conduct investigations and commence enforcement action in the case of non-compliance with the new obligations.
- National businesses with employees in Queensland will need to consider these Queensland amendments as the ‘high water mark’ for compliance.
Changes to Queensland’s WHS regulations
Implementation of control measures for sexual harassment or sex or gender-based harassment
As of 1 September 2024, employers with employees in Queensland have an express obligation under the Work Health and Safety Regulation 2011 (Qld) to:
- Manage gender and sex-based harassment at work, through sexual harassment risk assessment measures.
- Consider characteristics of the workers, workplace and work environment in implementing control measures.
Whilst businesses have long been required to proactively manage psychosocial risks under Queensland’s WHS legislation, the amendments take this a step further by requiring the explicit consideration of the risks arising from sexual and sex or gender-based harassment.
In practice, this means that employers cannot use a cookie-cutter approach to managing the risks of sexual harassment in the workforce. Employers will need to consider the specific risk factors relevant to their workforce and business in implementing control measures. For example, a gym with a large number of younger casual female reception staff would need to consider how to address the power disparities in place if the managerial team is dominated by older, full-time male employees.
Employers will also need to consider workers at particular risk of experiencing sexual harassment or sex or gender-based harassment including women, LGBTQIA+ workers, Aboriginal or Torres Strait Islanders, workers with a disability and migrant workers.
Implementing a Prevention Plan to manage identified risk
In the second limb of amendments, enforceable from 1 March 2025, businesses must prepare and implement a written sexual harassment Prevention Plan identifying risks, control measures and consultation processes to prevent sexual or gender-based harassment.
The prevention plan must set out the employer’s procedure for dealing with reports of sexual harassment or sex or gender-based harassment, including how employees can report sexual harassment or sex or gender-based harassment, and how such reports will be investigated.
In order to be compliant, it is necessary to ensure that the prevention plan:
- is in writing
- specifies each identified risk
- lists the control measures that have been implemented, or are to be implemented, to manage each identified risk
- identifies the matters considered by the business in determining the control measures
- outlines the consultation process undertaken with workers in compliance with the Work Health and Safety Act 2011 (Qld)
- outlines the process for reporting sexual harassment or sex or gender-based harassment at work including how the report will be investigated
- is expressed in a way that is readily accessible and understandable to workers
- will be reviewed each time a report of sexual harassment or sex or gender-based harassment at work is made, at the request of a health and safety committee or otherwise every three years.
A failure to prepare, implement or review a prevention plan will expose a business to civil penalties, whether or not any sexual harassment actually occurs. Each of the foregoing may be treated as a separate failure, with each failure amounting to a maximum fine of 60 penalty units (being $9,678 at the date of writing).
Changes to Queensland’s anti-discrimination law
From 1 July 2025, employers with employees in Queensland will have a positive duty to implement reasonable and proportionate measures to eliminate discrimination, sexual harassment, harassment on the basis of sex and other objectionable conduct as far as possible.
Practically speaking, the new legislation requires employers to take proactive measures to prevent discrimination, sexual harassment, sex-based harassment, or other objectionable conduct, rather than simply responding to complaints. The explanatory memorandum for the bill sets out the following examples of proactive measures that can be adopted by employers:
- Ensuring there are organisational policies in place that address the importance of respectful behaviour in the workplace.
- Ensuring easily accessible information is available.
- Conducting workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination or sexual harassment and the extent to which such conduct may have been experienced by members of the workforce.
- Engaging in informal or formal disciplinary discussions with members of the organisation who are displaying conduct that may be disrespectful and unlawful under anti-discrimination legislation.
- Managers and people in positions of leadership clearly and regularly articulating expectations of respectful behaviour.
Additionally, the new legislation expands the scope of protected characteristics, including by prohibiting discrimination on the basis of:
- expunged convictions
- homelessness
- irrelevant criminal record
- irrelevant medical record
- physical appearance
- subjection to domestic or family violence.
The Queensland Human Rights Commission has new enforcement powers with respect to the new positive duty, and will be able to conduct investigations into alleged systemic contraventions of the Anti-Discrimination Act 1991 (Qld), and publish reports of its findings. In practice, this may operate as a means by which employers can be ‘named and shamed’ for non-compliance. Additionally, the QHRC will be empowered to enter into enforceable undertakings with employers, and issue compliance notices in certain circumstances.
What does this mean for Australian businesses?
Although the changes are, at this stage, limited to Queensland, organisations that operate both inside and outside of Queensland should consider adopting similar measures into any risk assessments nationally, as it will increasingly become difficult to suggest that it was not reasonably practicable to do so.
We recommend that all Australian businesses take this opportunity to ensure that they have a nationally compliant framework for managing the risks of sexual harassment and discrimination at work.
Reach out to Timothy Zahara if you have any questions about the implications of these reforms for your business.
