 This next speaker brings more than 20 years of public sector experience to her positions as a member of Safe Work Australia and its subsidiary committees, a commissioner of the Safety Rehabilitation and Compensation Commission, a member of the Dust Disease Task Force, a member of the Respect of Work Council and a member of the G20 Occupational Safety and Health Experts Network. She's also a member of the National Advisory Committee for the World Congress for Health and Safety at Work 2023 event. To discuss Workplace Sexual Harassment Guidance and Duties within the WHS Act, please welcome the CEO of Safe Work Australia, Michelle Baxter. Thank you very much, Tracey. Good afternoon. I'm honoured to be presenting today at this very important national forum. My name is Michelle Baxter and, as Tracey said, I'm the Chief Executive Officer of Safe Work Australia. Today I'm going to outline how Safe Work Australia is working to influence positive change and accountability in the topical and important area of workplace sexual harassment. Safe Work Australia plays a crucial role in the creation of safer and more productive workplaces through improvements to national work health and safety policy and workers' compensation arrangements. This includes taking a preventative approach to dealing with sexual harassment at work. So today I will discuss how sexual harassment at work has been dealt with in the past and what needs to change. I'll provide an outline of the existing positive duties in the Model Work Health and Safety Act, Prevent Sexual Harassment, and I'll provide an overview of the work that Safe Work Australia has been doing to influence change and accountability through changes to the Model Work Health and Safety Legislative Framework and our guidance materials. So over the last few years sexual harassment has been promoted to the forefront of social and media commentary. And there's now a really significant momentum for governments and workplaces to understand what can be done to influence positive change and to make those changes. I know many of you present today have a role in making your workplaces healthy and safe. And as you all well know I'm sure we all have a role to play in creating safe workplaces and a safe workplace includes one that is free from risks to workers' physical and psychological health and safety, including those arising from sexual harassment. Next slide please. Unfortunately sexual harassment continues to be prevalent across all industries in Australia. The latest survey from the Australian Human Rights Commission showed that one in three people have experienced sexual harassment at work sometime in the past five years. We know that sexual harassment at work is often driven by gender inequality and impacted greatly by individual workplace leadership and the culture of an organisation. Power imbalances in workplaces can mean workers who experience sexual harassment may have limited options to stop that harassment, are likely fearful to report it and so are often forced to endure it or end their employment. As a CEO of an organisation I understand how important it is to protect your people and ensure their safety at work. The impacts of sexual harassment are immense, but for everyone involved, for individuals, for workplaces and for society. We know sexual harassment can cause psychological and physical harm, which can have a devastating impact on individuals and their families. The effects of sexual harassment can also lead to loss of productivity, low morale, absenteeism and increased staff turnover, which not only affects the individual but the workplace more generally. We know that psychological injuries are one of the costliest forms of workplace injuries. They lead to significantly more time off work and have a higher median payment per workers compensation claim. Work related harassment and bullying was the cause of over 30% of mental stress claims in 2018-19. Sexual harassment is also a social issue. We all as Australians can see the impact it has across society and the flow on effects it has on gender inequality. We all deserve to work in a safe and healthy workplace. So to look at what we can do to influence change, it's important to identify how we've gone wrong in the past when dealing with sexual harassment at work. Historically, sexual harassment has been treated as a discrimination or workplace relations issue, I beg your pardon, not a work health and safety issue. The past approach has been reactive and focused on the individuals involved and their specific behaviours, rather than taking a proactive and systematic approach to prevention at the organisational level. We know that the way a workplace deals with complaints about sexual harassment has a great impact on the employment, career progression, health and wellbeing of those affected. This impacts all workers. Individuals who experience or observe sexual harassment will not feel they work in a safe environment to raise an issue. Those who harass others face no consequences for their behaviour and may believe that their behaviour is acceptable or something that they can keep getting away with. Such approaches have not worked to prevent sexual harassment. In many cases, they have caused great harm to those who have been sexually harassed, who are often left to navigate and manage the issues alone at great personal and professional cost. This is not okay. It's critical that we all work together to prevent sexual harassment happening at work and treat it with the same importance that we've treated physical risks to workplace health and safety for all these years. So, what do we need to do to influence positive change? We can learn from past mistakes and we can change how we deal with sexual harassment at work. It's important that workplaces understand sexual harassment is a social and organisational issue that needs to be addressed at an organisational level. It's not just a problem of a few individuals behaving badly. Prevention is the key. Preventing sexual harassment is just as important as preventing harm from other workplace hazards. By making it a normal part of the risk management process, an organisational problem, not an individuals problem, is how we're going to initiate change. I'm pleased to see the strong commitment here today from government, business and other organisations all across Australia, committed to change and creating safer, healthier and more productive workplaces. We're now going to provide some detail on the work that Safe Work Australia is leading to support this change. As CEO, I'm proud of Safe Work Australia's mission to create safer and more productive workplaces. In 2011, Safe Work Australia developed a work health and safety framework, which consists of a single set of model work health and safety laws to be implemented across Australia. The model work health and safety laws contain positive duties to prevent sexual harassment before it occurs. These positive duties have existed under the model laws since 2011. Persons conducting a business or undertaking or a PCBU must ensure the physical and psychological safety of workers while at work, so far as is reasonably practicable. Sexual harassment is a known cause of harm. It is a work health and safety hazard and it is covered under this robust legal framework to protect workers. The model work health and safety laws apply to all types of working relationships, not just traditional employer-employee arrangements. This includes anyone doing work, including volunteers and independent contractors. The laws also require PCBU's to prevent harm to others from work carried out, including at the workplace, such as customers, students or patients, so far as is reasonably practicable. The primary duty in the model work health and safety laws requires PCBU's to eliminate or minimise the risk of sexual harassment so far as is reasonably practicable. This means identifying when, where and how sexual harassment may occur and the most effective and reliable ways to control the risk. It also means responding appropriately if sexual harassment does occur to prevent further harm. PCBU's must also consult with workers and any health and safety representatives on any workplace risks and preventative control measures that they have in place. Workers and others in the workplace also have duties under work health and safety laws, including not adversely affecting the health and safety of others. In the context of today's discussion, what this means is that workers have a duty not to sexually harass their colleagues or others at the workplace. Workers also have a duty to comply with policies and instruction related to health and safety at the workplace, for example policies about sexual harassment or bullying. Work health and safety regulators and their inspectors have a range of options to enforce work health and safety laws. Options range from education and support and awareness raising through to fines of up to $3 million for body corporates and up to $600,000 and five years imprisonment for individuals for the most serious breaches. So exactly how can a PCBU manage the risk of sexual harassment at work? They should use a preventative risk management approach. This approach is the same as they would undertake for any physical risk or hazard they identify in the workplace. The processes for managing psychosocial risks like sexual harassment doesn't need to be separate from the processes to manage physical risks. In fact, if you manage all your health and safety risks together, the control measures you put in place are likely to be more effective. PCBU's should start by identifying how, where and when sexual harassment might happen at work, assessing the likelihood of it happening and how it may affect workers. PCBU's must then eliminate or minimize these risks so far as is reasonably practicable. They can do this by creating a safe physical working environment. For example, they could ensure the workplace layout avoids workers movements being restrictive, has good visibility and provides secure and private change rooms. They can also create a safer online working environment. For example, by using security settings to block harmful material and not using personal social media accounts for work. PCBU's should implement safe work systems of work and safe job design. For example, you may find sexual harassment is more likely to occur when workers are doing certain tasks or while in certain places and be able to redesign work in a way to minimize these risks. They should create a positive and respectful workplace culture. This includes setting standards of behavior, addressing lower level harassment early, creating a culture where workers feel comfortable reporting issues and dealing with them appropriately, and by implementing workplace policies and providing training to support this. Where possible, increasing workplace diversity and addressing power imbalances can also help to improve workplace culture and to create a safer working environment. PCBU's must consult workers who are directly affected by a health or safety matter. We know that consultation is an essential and effective way to help workplaces identify risks and control them appropriately. Workers are great sources of information about the workplace and processes and a workplace to identify simple and practical ways to improve safety. However, it's important that PCBU's consider the sensitivities involved in consulting workers on sexual harassment. Consultation processes should be adapted to ensure individuals feel safe and supported to engage and construct a consultation. We hope that these efforts will greatly reduce the prevalence and in turn the impacts of sexual harassment. PCBU's should also develop reporting processes that support confidential and or anonymous reporting. They should have appropriate and tailored processes for dealing with complaints and ensure that these are well communicated and understood. These measures build confidence in reporting. PCBU's have a duty to protect workers and ensure they can report sexual harassment without fear of retribution or further harm. Respecting the individual preferences of workers and how they want to be consulted and what action they would like to be taken can also go a long way to creating a culture of respect. Addressing lower level harassment early and all harassment appropriately and sensitively will help to build confidence and create a positive, respectful and safe working environment. If PCBU's can implement these work processes and deal with sexual harassment workplaces will be much better placed to deal with these issues as they arise. If they don't manage sexual harassment, PCBU's are not meeting their legal obligations under work health and safety laws and this is likely costing their business in other ways such as more workers compensation claims, negative publicity, lower productivity and higher staff turnover. CEOs and senior managers as officers of a PCBU under the model work health and safety laws must also exercise due diligence to ensure the risks of sexual harassment at work are being managed. Again, if they as officers don't do this, then they are also not meeting their legal obligations under the WHS laws. So the WHS laws alongside other legislative frameworks prohibit workers from being disadvantaged for reporting sexual harassment. WHS regulators in each of the jurisdictions can provide advice to PCBU's to help them meet their WHS duties and workers can report problems directly to the regulators where workplace hazards exist. So I've explained that sexual harassment is covered by the model work health and safety laws however we know there is more work to be done to address psychosocial hazards at work including sexual harassment. So while the model work health and safety laws already cover psychosocial hazards, there aren't any specific regulations or codes of practice for these hazards. And the 2018 review of the model work health and safety laws found that this can create a perception that psychosocial hazards are less important than physical hazards. It also found there is a lack of understanding and compliance with existing duties and obligations under WHS laws when it comes to psychosocial hazards. So the Bowland Review recommended that Safe Work Australia amend the model work health safety regulations to assist PCBU's to identify psychosocial risks and the appropriate control measures to manage those risks. In May this year, work health and safety ministers in the Commonwealth, States and Territories agreed to amend the model WHS regulations in line with this review recommendation. And so right now, Safe Work Australia is working on this. To ensure the new model regulations on psychosocial risks such as sexual harassment are clear and to provide more certainty for PCBU's. Amendments to the model WHS regulations will not introduce new requirements but rather they will clarify existing duties. As I said earlier, there's already a positive duty under the model laws to prevent sexual harassment at work because it is a risk to workers health and safety. Safe Work Australia members have also recognised that duty holders need additional information on how to meet their duties. That's why Safe Work Australia is also developing a model code of practice on managing psychosocial hazards at work. This model code will provide detail on what psychosocial hazards are and how to apply the risk management process to eliminate or minimise risks so far as is reasonably practicable. The model code will also highlight the importance of consultation with workers throughout this process. This model code is like all our codes being developed through Safe Work Australia's tripartite process which draws on the expertise of the jurisdictions as well as employer and worker representatives to ensure that the code is accurate and useful. The code will aim to give businesses the information and support they need to embrace and engage with the risk management process to prevent psychosocial hazards. We want businesses to include psychosocial hazards in their broader risk management processes. As many here today are aware, there isn't a single set of control measures that will work in every single workplace. A tailored individual approach is needed to suit the workplace and their individual circumstances. By supporting and educating duty holders to tailor control measures to their workplace, we're creating the foundation to initiate and influence positive change. And given the human and economic costs of psychological injuries, this has the potential for a huge positive impact for businesses and workers. So before we commenced work on the new model regulations and code, Safe Work Australia published in January of this year, I believe, one of the world's first comprehensive guides to clarify how work health and safety duties apply and provide businesses with practical information on how to proactively prevent sexual harassment. I've mentioned some of these control measures in my presentation to you today. The guidance is intended to support PCVUs in consultation with workers to identify the most effective and practical ways to prevent sexual harassment at work. The guide sets out the steps PCVUs must take to meet their duties and provides practical examples of how PCVUs can proactively manage the risk of sexual harassment. We've also developed a suite of supporting materials such as fact sheets and shorter guides tailored for small businesses and their workers. We understand not all organisations are the same. From large corporations to small businesses, we know there are different risks, different levels of understanding, and certainly different levels of resourcing. So we'll continue to ensure that we provide accessible information to ensure that all workplaces, no matter the size or industry, understand and know how they can prevent sexual harassment at work. In conclusion, I'm really pleased that Safe Work Australia is working at the forefront of this important issue. We want to make it easier for Australian workplaces to adopt a preventative management approach for psychosocial hazards, just as they do for physical hazards at the workplace. We're working hard to make workplaces safer, and I'm confident that working towards a preventative, work health and safety approach to sexual harassment is a priority for each one of our members. As I've outlined, it is important that PCVUs manage the risk of sexual harassment just as confidently as they do for other workplace hazards. Improving the culture of a workplace and creating a safe working environment will go a long way to actively stand out this behaviour. While we still have a long way to go to initiate change and create a preventative approach in workplaces of all shapes and sizes across Australia, I'm confident to see that Australian society is holding governments and workplaces accountable. I'm pleased to see so many of you attending this event today, which demonstrates there's a really strong commitment to address sexual harassment as a work health and safety issue. The focus on sexual harassment continues, and there is much more community awareness of the seriousness of this issue than five or 10 years ago. I've seen Australian workplaces adopting policies and training and improving the way they respond and think about this issue. It's important to remember we are all responsible in our respective roles to be a part of the change in focus in this important area. We can actively change our working environments. We can lay the foundations for a positive, inclusive workplace culture and make Australian workplaces safe and healthy from both physical and psychosocial hazards. Thank you very much for listening to my presentation today. Thank you. Thank you so much, Michelle, for your terrific and informative presentation. We've got quite a few questions, so I'll get straight into them. When considering the hierarchy of control, what would you consider an appropriate specific control measures to eliminate or manage the risk of sexual harassment in the workplace? What are examples of specific engineering and administrative controls for sexual harassment? Thanks, Tracey. I think it's fair to say that the jury is still out on the hierarchy of controls and for how it will work for psychosocial risks. What's most important is that controls are in place. Wherever they fit on the hierarchy. Examples of measures targeted at individual behaviour could be an example of how to create a safe system of work. There could be a whole range of other ways of looking at the issue, just developing, as I said in my speech, developing a respectful culture that doesn't tolerate harmful behaviour, putting in place policies that set standards of behaviour, maintaining a workplace with good visibility, training workers to understand what sexual harassment is and what to do if they witness or experience it, and encouraging reporting and addressing sexually harassment appropriately and confidently in the workplace. When we talk about safe design of work, that's possibly where some of the engineering controls might come in. So it's things like considering aspects of the design of the physical working environment, where partitions are, where deaths are, what the breakout rooms look like, that type of thing. And it's about considering when, where, how sexual harassment could take place from a physical perspective in your workplace and then doing what's reasonably practicable to put in place controls, and some of which may be engineering controls. Thanks. Thank you, Michelle, for those really practical suggestions. Next question. I'm currently off work after a 24-month investigation into workplace sexual harassment. I didn't know that work safe existed when it was taking place nor how to access help. How can we ensure departments make staff aware of what's available? Also, what can we do when departments fail to keep us safe? So that's really a question for the regulator. As a policy body, I can provide some general comments, but it would be for the Work Health and Safety Regulator to deal with. In terms of the second part of the question, what to do if, you know, the workplace isn't safe or the employer, the PCBU is not keeping the workplace safe. It is possible and perfectly reasonable for a worker to talk to the employer, the PCBU, about their concerns. They can talk to the Health and Safety Representative in the workplace about their concerns. They can approach the Work Health and Safety Regulator in their jurisdiction if they wish to express their concerns. Some people may be members of unions. They can also approach the unions about that. So the first part of the question was, I'm sorry, Tracy, the person asking the question says they've been off work for 24 months. Yes, that's correct. And so what was the, what were they asking? Off work after a 24 month investigation, they did not know the work safe existed, nor how to access help. Yeah, look, and I really feel for that person. I think as I acknowledged in my speech, you know, I think there's an increased focus on sexual harassment in workplaces. I think there's a much better and more significant understanding of the prevalence. And I think that with the increased media and societal attention to sexual harassment in the workplace, there's a much greater awareness growing amongst Work Health and Safety Regulators of the need for them to step in and address this issue. So from my perspective, I think we're at, you know, we're beginning a journey in workplace health and safety. And part of that journey is going to be initially about raising awareness and educating people about the existence of the positive duty, for instance, that exists in work health and safety laws, you know, educating PCVUs slash employers about, you know, the obligation they have to their employees, workers and others, and that it's not just about ensuring the health and safety from physical hazards, but also psychosocial, including sexual harassment. And so, yeah, it's really, you know, it's going to be a staged process, and it's not going to unfortunately won't, you know, it'll take some time to get that cultural change that's needed. But I'm really hopeful that with all the work that we're doing in Safe Work Australia, the amendment to the regulations, the development of a code of practice and the guidance that we've already published, that, you know, that that's starting to gain traction and not just awareness amongst work health and safety regulators, but with PCVUs slash employers and workers as well. So we're trying to pitch at all different levels and, you know, consumers of the information as it were. Thanks, Michelle. Finally, briefly, how well placed are WHS regulators to deal with sexual harassment? Given they haven't traditionally dealt with it, also, are regulators going to go beyond sexual harassment and look at other forms of gender-based violence? Thanks, Tracey. Look, I don't think I'm very well placed as a policy agency head to talk about whether work health and safety regulators are prepared. I am aware that many, if not all workplace health and safety regulators around Australia are ramping up their efforts in relation to work health and safety and sexual harassment. And yes, the obligation on a PCVU to provide safe and healthy workplaces extends beyond sexual harassment. It extends to a whole range of other issues, including, you know, gender situations, gendered violence, occupational violence, that type of thing. So yes, it's not confined to sexual harassment. It's about any hazard or risk in a workplace that can affect a worker's health and safety. That's how large the obligation is or how broad the obligation is. Thank you so much for your time. Michelle Baxter, CEO of Safe Work Australia.