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New reforms will require employers in Queensland to implement proactive measures to prevent workplace discrimination and harassment – or risk facing fines.
Recent insights from Hamilton Locke partner Timothy Zahara and graduate lawyer and legal researcher Maria Hakim have highlighted the changes that Queensland employers will face as new reforms pertaining to sexual or sex or gender-based harassment are set to come into place.
According to the pair, these reforms will impose the strictest requirements of any Australian jurisdiction, requiring businesses to take proactive steps in eliminating and preventing discrimination, harassment and other objectionable conduct in the workplace as far as possible.
Zahara and Hakim curated a list of “need to know” for Queensland employers. They said:
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“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.”
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“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.”
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“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.”
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“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.”
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“National businesses with employees in Queensland will need to consider these Queensland amendments as the ‘high water mark’ for compliance.”
There will also be an implementation of control measures for both sexual harassment or sex or gender-based harassment as of 1 September 2024, which means that employers who have employees in Queensland have an obligation to:
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Manage gender and sex-based harassment at work, through sexual harassment risk assessment measures.
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Consider characteristics of the workers, workplace, and work environment in implementing control measures.
Zahara and Hakim explained that these obligations mean that employers cannot take a cookie-cutter approach towards managing risk of sexual harassment within their workplace.
“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,” they said.
“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.”
The second part of the amendments includes implementing a prevention plan to manage identified risks in the workplace. Enforceable from 1 March 2025, businesses must prepare and implement a written sexual harassment prevention plan.
“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,” said Zahara and Hakim.
“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).”
As far as advice goes for businesses that will be affected by these reforms, the pair said: “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.”
RELATED TERMS
According to the Australian Human Rights Commission, discrimination occurs when one individual or group of people is regarded less favourably than another because of their origins or certain personality traits. When a regulation or policy is unfairly applied to everyone yet disadvantages some persons due to a shared personal trait, that is also discrimination.
Harassment is defined as persistent behaviour or acts that intimidate, threaten, or uncomfortably affect other employees at work. Because of anti-discrimination laws and the Fair Work Act of 2009, harassment in Australia is prohibited on the basis of protected characteristics.
Sexual harassment is characterised as persistent, frequent, and unwanted sexual approaches or behaviour of a sexual nature at work. Sexually harassing another person in a setting that involves education, employment, or the provision of goods or services is prohibited under the law.
Kace O'Neill
Kace O'Neill is a Graduate Journalist for HR Leader. Kace studied Media Communications and Maori studies at the University of Otago, he has a passion for sports and storytelling.
