Q/A - Sexual Harassment in the Workplace

Published by:: Victorian Government Solicitor's Office
Date:: 5 Sept 2023

We hosted a webinar 'Sexual Harassment in the Workplace - An update for the Victorian Public Sector on latest developments' on 23 August 2023. Following this presentation we had a number of questions that we have consolidated and answered below.

How would you recommend dealing with staring type issues?

Staring can be sexual harassment. A video depicting this type of sexual harassment and the importance of bystander intervention is on Respect Victoria's website.

Depending on the circumstances, this type of sexual harassment can be dealt with informally in the first instance (if appropriate), or alternatively, through a formal process.

Would the OHS Act also be an avenue of redress?

Employers have an obligation under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) to, as far as is reasonably practicable, provide and maintain for their employees a working environment that is safe and without risks to health (s 21 of the OHS Act). Employees also must take reasonable care for their own health and safety, and reasonable care for the health and safety of persons who may be affected by their acts or omissions (s 25 of the OHS Act).

As the regulator who enforces the provisions of the OHS Act, WorkSafe can investigate matters and take enforcement action (including prosecution) in respect of potential or actual breaches of the OHS Act. Employers may also be liable to criminal prosecution and criminal penalties.

Can you advise in situations where an employee complains to HR about their manager's sexual jokes but insists you don't do anything about it as the manager is well connected and the employee is not comfortable managing up?

Employers have a number of obligations in relation to preventing and addressing sexual harassment in the workplace. This includes:

a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual and sex-based harassment, hostile work environments (under the Sex Discrimination Act 1984) (Cth))
a positive duty under to take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible (under the Equal Opportunity Act 2010 (Vic))
a duty to maintain a safe workplace under the OHS Act.

For this reason, action may need to be taken regardless of whether the employee who has reported the incident wants any further action to be taken or not. An employer who is on notice about a workplace hazard, but who takes no action to eliminate or reduce the risk of harm, so far as is reasonably practicable, may also be liable to criminal prosecution and criminal penalties.

Importantly, the employee who has made the report (and anyone who has supported them), cannot be victimised for having taken such a step (see for example protection against victimisation under s 103 of the EO Act and also general protections under the Fair Work Act 2009.

Is there a session specifically for People and Culture teams?

Thanks for this suggestion. Our training workshops can be adapted for People and Culture teams. Please let us know if you would like us to run such a session for your organisation.

Are there any resources that you can share with organisations such as VPS sexual harassment common policy or other guides / resources?

Many great resources are available including from the Victorian Public Sector Commission - see VPSC Model Policy for the Prevention of Sexual Harassment in the Workplace.

Other sources of information are:

Can you confirm when the 12 month timeframe is from (powers of FWC)?

A person who alleges that they have been sexually harassed in contravention of the FW Act may apply to the Fair Work Commission to deal with the matter within 24 months of the last alleged contravention.

Are reasonable precautions the same as reasonably practicable actions under the OHS Act?

Not necessarily. While there is likely to be overlap between the two concepts, they arise under different pieces of legislation, in different contexts, and may be interpreted differently by the courts.

However, 'reasonable precautions' taken by an employer are likely to be aligned with reasonably practicable risk control measures in the context of the workplace. Remember that an employer is required to implement all reasonably practicable measures in relation to identified workplace hazards.

Given the recommendations from the Victorian Ministerial Taskforce on Workplace Sexual Harassment, accepted by Government, that sexual harassment be treated as an OHS issue - does the positive duty requirement set a higher or lower bar than the employer duties under the OHS Act (in relation to sexual harassment), or do they have different scope?

The bar is high regardless of whether an employer is acting in accordance with the positive duty, or in addressing the workplace hazard under the OHS Act. The positive duty is focused on prevention whilst the OHS Act requires an employer to provide and maintain a working environment for employees that is safe and without risks to health. Enforcement action can be taken in both instances.

What is meant under reasonable precautions by 'monitoring the workplace'?

Monitoring, evaluation and transparency is one of the minimum standards for employers developed by Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and the Australian Human Rights Commission (AHRC). This standard requires employers to collect and assess data on complaints and reports of sexual harassment to look for trends, patterns and lessons to drive continuous improvement.

Data can be collected from workers to assess instances of unreported sexual harassment, including through anonymous surveys, consultation with workers (and their representatives) including interviews and focus groups, surveys and exit interviews.

Data can also be collected using workforce statistics, such as worker turnover rates, rates of absenteeism and use of sick leave, and rates of access to flexible working arrangements and parental leave across all genders.

‘Knowledge checks’ should also be conducted to test workers’ understanding of relevant unlawful conduct and workplace expectations.

For more information on monitoring the workplace, please see pages 91-95 of the Victorian Equal Opportunity and Human Rights Commission Resources and pages 77 to 88 of the Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth).

When an employee indicates that they want the matter to be confidential, should the employer/P&C ask what the employee's expectations are?

It is always important to be clear with the employee about what they can expect when making reports or complaints and/or participating in an investigation and/or misconduct process.

Further it is also important for the employee to be told that information will have to be shared within an organisation for the purposes of conducting an investigation into the complaint, and taking any necessary disciplinary action to properly address the behaviour raised in the complaint. This would also include providing sufficient information to a respondent about an allegation to enable them to respond to the allegation.

Which hospitality business is being charged and at which two hospitals?

This information is not publically available. You can read the statement released by WorkSafe Victoria here.

Contact our team

Frances Anderson Assistant Victorian Government Solicitor
M 0475 834 049 E frances.anderson@vgso.vic.gov.au

Dana Wintermantel Managing Principal Solicitor
M 0428 634 405 E dana.wintermantel@vgso.vic.gov.au

Jane Delahey Principal Solicitor
M 0408 346 140 E jane.delahey@vgso.vic.gov.au

Viewing the webinar

If you would like to view the webinar 'Sexual Harassment in the Workplace - An update for the Victorian Public Sector on latest developments', please go to the Innovation Network - VGSO Community of Legal Education. On the resources section of this site details and links to recordings of all VGSO webinars can be found. This is a great place to catch up and obtain CPD points. Note the Innovation Network is for the VPS employees only and you will need to create a log in and password.

Updated 5 September 2023