Recently, Safework Australia, the statutory body established to develop national policy relating to Workplace Health and Safety as well as Workers’ Compensation published a comprehensive guide that focussed on preventing sexual harassment in the workplace (the Guide). The Guide stemmed from the Australian Human Rights Commission’s report on sexual harassment in Australian workplaces which highlighted how prevalent sexual harassment is and the harm it is causing. The Guide has been designed to give businesses practical guidance so as to help them prevent workplace sexual harassment, violence, aggression and domestic violence.
What is Sexual Harassment?
The Guide defines 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”.
Sexual Harassment and Risk in the School Workplace
The Workplace Health and Safety Act 2011 (Qld) (the Act) requires employers to eliminate risks to the health and safety of workers and other persons so far as is reasonably practicable (Australia’s other States and Territories have their own legislation which mirror the Act). Sexual harassment is no different to any other risk in the workplace and nor should it be treated any differently. Like many workplace risks, sexual harassment can cause physical and psychological harm. Relevant to schools a:
- ‘workplace’ includes amongst other things, working remotely from home, attending conferences and work related trips (such as excursions, sporting or cultural trips) and when on the phone or communicating through electronic formats or social media platforms; and
- ‘worker’ includes amongst other things employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students and volunteers who carry out work”.
What this means is that a school must treat the risk of sexual harassment happening to a parent volunteer in a weekend sports canteen or a staff member on an excursion in the same manner as any other workplace risk such as a slip or fall at a ‘wine and cheese evening’, the spillage of a chemical during a science experiment, a bus accident involving a group of students on an excursion, the possibility of food poisoning at a function or the possibility of a staff member being injured at a school camp.
Managing Risk
The Guide makes it very clear that employers ought to do whatever they can to eliminate or minimise the health and safety risks of sexual harassment in the workplace so far as is reasonably practicable. It states that employers ought to:
- identify the hazards;
- assess the associated risks;
- implement control measures to eliminate or minimise risks; and
- regularly review control measures to ensure they remain effective.
Identifying Hazards and Risk Assessments
Like any business, schools undertake hundreds of ‘risk assessments’ every year for a variety of classes, events and functions.
School Concert Example
By way of example, a staff member in charge of a concert in the School Hall would ordinarily be required to complete a risk assessment before staging the concert. The risk assessment would most likely include an assessment of risks such as slips or falls, anaphylaxis if food is being served and the risk of burns if food is being prepared. The ‘assessor’ would rate the risk as low, medium or high and then typically record a process or procedure for how to reduce the risk from happening so as to comply with the requirements of the Act. Importantly for schools, the risk of sexual harassment should also be added to the risk assessment, a rating of how likely it is to happen and measures that it will implement to minimise the risk.
Other Hazards
The Guide also provides direction on other sexual harassment risk factors within businesses. Relevant to schools, factors to look out for include:
- low worker gender diversity in certain departments of a school;
- power imbalances where one gender holds more management and decision making positions;
- the use of alcohol in a work context such as conferences, social events and overnight travel; and
- working in isolated places such as cars, employer supplied accommodation and working remotely with limited supervision.
As part of the process of eliminating the risk of sexual harassment in the workplace, the Guide has set out some important directions on sexual harassment identification, how the risks can be controlled and what your safe work systems and practices should include.
Take Home Message
Sexual harassment in the workplace is a very important part of any school’s workplace health and safety obligations. The recent attention in the media only serves to highlight this fact. In light of this, Schools should ensure that they are aware of their obligations as set out in the Guide but in particular, they ought to:
- include the risk of sexual harassment, as well as any other applicable risks, as part of any risk assessment they undertake for classes, events or functions; and
- conduct a comprehensive assessment of the sexual harassment risk factors associated with the entirety of their ‘workplaces’.
For more information contact our Education Special Counsel, Ben Foley.
Summer is over – the new framework for statutory trust accounts starts 1 March 2021