Do you engage workers in QLD? Have you done your written sexual harassment Prevention Plan?

Between managing tax, payroll, leave entitlements, safety and employee conduct, staying on top of ever-changing legal obligations as an employer can be a real challenge, and for those who employ workers in Queensland, there is now an extra obligation that should not be overlooked.

The latest changes to the State's Work Health and Safety Regulation 2011 (Qld) (WHS Regulations) require all businesses who engage workers in Queensland to have a written ‘Prevention Plan’ to manage the risk of sexual harassment and sex or gender-based harassment. Failure to prepare, implement and review a written ‘Plan Prevention’ could collectively attract fines exceeding $29,000.

Understanding the Queensland ‘Prevention Plan’ requirements

The requirement to have a written Prevention Plan applies to any Person Conducting a Business or Undertaking (PCBU) with workers in Queensland, regardless of whether they are full-time, part-time casual, contractors, labour hire or even volunteers. Even small businesses are caught. 

Under section 55H(2) of the WHS Regulations, a compliant Prevention Plan must:

• be in writing
• list each of the identified risks of sexual harassment and sex or gender-based harassment and the control measures implemented (or to be implemented)
• identify the matters taken into account in determining what control measures are appropriate (including those in the WHS Regulations)
• outline the consultation process undertaken with workers, Health and Safety Representatives (HSRs) and WHS committees in developing the plan
• set out the procedure for making, investigating and resolving reports of sexual harassment or sex or gender-based harassment, including workers’ rights to representation and use of WHS dispute mechanisms
• be expressed in a way that is readily accessible and understandable to all workers.

Ongoing requirements 

Employers must also take reasonable steps to ensure workers are aware of the Prevention Plan and know how to access it, not just once, but on an ongoing basis. This includes making the plan available to new workers as they join a business. 

In addition, the Prevention Plan must either be reviewed:

• as soon as practical following any incident or complaint
• as soon as practical after a request is made by a HSR or WHS Committee for the plan to be reviewed
• every three years.

What are the risks of not having a Prevention Plan?

Failing to prepare, implement or review a written Prevention Plan isn’t just a procedural oversight, it’s a breach of Queensland’s WHS Regulations. Each of these failures attracts a separate fine of up to $9,679, bringing the total potential penalty to $29,037. Significantly, these fines can be imposed even if no incident of sexual harassment occurs.

WorkSafe Queensland can also issue on-the-spot fines, improvement notices, and prohibition notices for failing to comply with the obligation to have a Prevention Plan. 

In addition, if a sexual harassment or sex or gender-based harassment complaint is made, the failure to have a compliant Prevention Plan in place may be treated by a Court as an aggravating factor, potentially exposing an employer to higher penalties.

How does this fit in with an employer’s other sexual harassment obligations?

The requirement to have a written Prevention Plan in Queensland doesn’t stand alone. It complements two existing duties already applying to employers:

1. The Positive Duty under the Sex Discrimination Act 1984 (Cth): which requires employers to take reasonable and proportionate measures to eliminate sexual harassment and related conduct so far as possible.
2. General WHS Duties under Queensland’s Work Health and Safety laws: which require all businesses to take reasonably practicable steps to identify and manage both physical and psychological risks in the workplace, including those arising from sexual harassment and sex or gender-based harassment.

While many employers have already taken steps to meet these duties, such as conducting risk assessments and introducing control measures, the Queensland Prevention Plan obligation is highly prescriptive. It requires specific content, documentation, consultation and communication steps that may not be fully addressed by prior compliance efforts. It is therefore important not to assume that earlier work under the federal positive duty or general WHS obligations will automatically satisfy the Queensland Prevention Plan requirement.

What does this mean for Queensland employers?

If you’re a Queensland employer and you don’t already have a Prevention Plan in place, now is the time to act. Make sure you have a Prevention Plan that:

1. is prepared in consultation with workers
2. meets the content requirements under the WHS Regulations
3. is implemented and workers are aware and know how to access it.  

Need help?

Even with the best of intentions, it can be difficult to know whether a Prevention Plan meets the requirements under Queensland’s WHS laws.

At ABLA, we’ve developed a Sexual Harassment Positive Duty Toolkit which has tools specifically designed to support Queensland employers with meeting their obligation to have a Prevention Plan, as well as their positive duty obligations under federal discrimination law. In particular, our toolkit includes a detailed Queensland-specific Prevention Plan template with prompts and guidance to help employers prepare a Prevention Plan that aligns with the WHS Regulations. 

If you'd like to find out more about our toolkit, how to use the template or how to tailor a Prevention Plan to suit your workplace, please get in touch at info@ablawyers.com.au for further information.