Preventing and responding to workplace sexual harassment (Directive 12/23)

1. Purpose

1. Sexual harassment is unacceptable in Queensland public sector workplaces.
2. The Queensland Government has a positive duty to prevent and address sexual harassment in the Queensland public sector as part of providing healthy and safe workplaces for all employees, visitors, and contractors. Sexual harassment in any form is unacceptable in Queensland Government workplaces.
3. This directive outlines Queensland public sector entities’ obligations to prevent and respond to sexual harassment in the workplace and supplements the Work Health and Safety Act 2011 (WHS Act) and the Managing the risk of psychosocial hazards at work: Code of Practice 2022 (the Code of practice).

2. Commencement

2. The directive commences on 28 July 2023.

3. Authorising provisions

3. Section 222 of the Public Sector Act 2022 (Act).

4. Application

4. This directive applies to:
   1. public sector employees described in section 12 of the Act
   2. public sector entities described in section 8 of the Act
   3. chief executives of public sector entities described in section 16 and 17 of the Act.
5. Section 229 of the Act outlines the relationship between a directive and an industrial instrument including how to deal with inconsistencies.

5. Principles

5. All employees have a right to work without being subjected to sexual harassment.
6. All employees must treat each other with respect and dignity.
7. Sexual harassment is unlawful, is prohibited by the Anti-Discrimination Act 1991 (AD Act) and may be a criminal offence.
8. Section 121 of the Industrial Relations Act 2016 (IR Act) sets out what an employer must do to dismiss an employee and characterises sexual harassment as misconduct.
9. Under section 33 of the Act chief executives must promote and support a positive culture of respect and inclusion in the workplace. This is critical to preventing sexual harassment.
10. Under section 19 of the WHS Act chief executives must provide safe workplaces. They must proactively prevent sexual harassment and protect all employees from risks to their health and safety. Chief executives have a duty to ensure that an employee who reports sexual harassment is safe.
11. Chief executives are responsible for ensuring risks to both physical and psychological health are identified and managed. Chief executives must ensure risks, including those relating to sexual harassment matters are promptly recorded, effectively managed and reported as required under the WHS Act and the Code.
12. Chief executives must proactively manage reports of sexual harassment by ensuring a person-centred, timely and proportionate employer response. The employer response should consider where possible, the views of the employee who has reported an experience or incident of alleged sexual harassment.
13. Under the Human Rights Act 2019 (HR Act) decision makers must:
    1. act and make decisions in a way that is compatible with human rights
    2. consider human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
14. Under chapter 1, part 3 (Reframing of State’s relationship with Aboriginal peoples and Torres Strait Islander peoples) of the Act public sector entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples. A chief executive of a reframing entity is responsible for ensuring the entity fulfils its role when applying and making decisions under the Act and Commissioner directives.
15. Under chapter 2 (Equity, diversity, respect and inclusion) and chapter 3 (Public sector arrangements) of the Act, chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
16. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes or applying provisions under this directive.

6. Interpretation of directions

6. The requirements set out in these directions are binding and must be followed.
7. This directive does not replace, modify, or revoke any legislative requirements that apply to the management of particular complaints. For example, corrupt conduct under the Crime and Corruption Act 2001 (CC Act), public interest disclosures under the Public Interest Disclosure Act 2010 (PID Act), or complaints under the HR Act.
8. This directive does not replace, modify, or revoke the obligations public sector entities have to provide a safe workplace for visitors and contractors under the WHS Act.

7. Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples

7. Chief executives must consider the responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples when taking action to prevent and respond to workplace sexual harassment in accordance with this directive. This includes but is not limited to:
   1. promoting cultural safety and cultural capability at all levels of the public sector
   2. working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, when making decisions directly affecting them
   3. promoting a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples
   4. supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.
8. To promote cultural safety when preventing or responding to sexual harassment, relevant considerations for a chief executive include:
   1. recognising culturally significant connections for Aboriginal people and Torres Strait Islander people involved with a concern, complaint or grievance about sexual harassment
   2. ensuring that a person (including any support person) involved in the response to, or management of a concern, complaint or grievance about sexual harassment, that involves Aboriginal peoples and Torres Strait Islander peoples, is culturally capable
   3. ensuring support and communication is culturally appropriate during complaint processes
   4. considering any elements of conscious or unconscious bias that may impact raising concerns about sexual harassment and complaint processes, including the use of mitigation strategies
   5. consideration of the cultural rights of Aboriginal peoples and Torres Strait Islander peoples under section 28 of the HR Act.

8. Requirements for chief executives

8. Chief executives must:
   1. have a standalone workforce policy to prevent and respond to workplace sexual harassment
   2. promote their workforce policy and ensure their workforce:
      1. is educated and trained to appropriately identify sexual harassment in the workplace
      2. is aware of their obligations and rights in relation to sexual harassment in the workplace
      3. is aware of reporting and response processes.
   3. provide leadership training regarding the expected standards of behaviour and how to appropriately respond to reports of workplace sexual harassment
   4. respond to instances of sexual harassment in the workplace promptly, with confidentiality and sensitivity, using person-centred approaches and affording procedural fairness to all parties
   5. assess the risks of workplace sexual harassment and implement appropriate control measures to eliminate or control risks, as required by the WHS Act
   6. ensure the process undertaken to investigate and respond to a report of alleged sexual harassment is fair, objective, conducted in a timely and impartial manner, applied consistently to all employees, and ensures procedural fairness for all parties involved as detailed in the Code
   7. ensure employees who report alleged sexual harassment are offered support options and access to support appropriate to the circumstances of their reported concerns, including but not limited to, person-centred support and advice (or other approved model as approved by the Commissioner). These support options are to be guided by the principles of:
      1. trauma-informed
      2. gender-informed
      3. consistent with a broader focus on respectful and inclusive workplaces
      4. operationally sustainable
      5. fit for purpose, based on the size and decentralisation of the agency, and the nature of the organisation’s work (e.g. policy, regulatory, service delivery to the community).
   8. ensure employees who report alleged workplace sexual harassment are advised of their rights and obligations under the PID Act and CC Act where relevant.

9. Requirement to have a sexual harassment prevention and response policy

9. Chief executives must ensure their entity’s stand-alone workplace sexual harassment prevention and response policy (see 8.1 (a)) at a minimum incorporates inclusions in the model prevention and response to workplace sexual harassment policy template by:
   1. clearly stating that sexual harassment is not tolerated and is unlawful
   2. outlining the entity’s positive duty to prevent sexual harassment from occurring
   3. consistently reflecting the principles set out in this directive
   4. outlining the entity’s commitment and approach to supporting employees affected by workplace sexual harassment
   5. identifying how an employee may access support and advice about their options, internally and externally to the entity, and setting out all internal and external pathways available for an employee to report concerns about workplace sexual harassment
   6. setting out how the entity will respond to and manage matters in a way that considers the preferences of the employee reporting alleged sexual harassment in a manner consistent with the requirements in this directive.
10. Chief executives must ensure their entity actively promotes employee awareness of the policy and related support options, including how to access support and advice.

10. Responding to reported alleged sexual harassment

10. Where an employee reports they have witnessed or experienced alleged sexual harassment, the employee has the right to:
    1. continue to be treated with respect by all people in the workplace, be supported in the workplace and not be victimised or treated differently because of experiencing or raising sexual harassment concerns
    2. access person-centred confidential advice on their rights and options to report the matter from a contact officer, entity HR team, or external advisory service such as the entity’s employee assistance service, 1800Respect or union representative
    3. provide input into how they would like the matter resolved. These preferences are to be considered when determining how to proceed with the grievance. Where the views of employee are unable to be met, the entity will explain its reasons to the employee
    4. be advised of their right to make a criminal complaint to the Queensland Police Service if there is any concern that the harassment could be a criminal act, such as indecent exposure, stalking, sexual assault or obscene or threatening communications
    5. be appropriately consulted about their workplace options and not be relocated from their usual workplace, unless the employee requests to be relocated, or, after all other options have been explored, relocation is the only acceptable means of ensuring the safety of the employee.
11. An employee may choose to:
    1. lodge a grievance under the Individual employee grievance (IEG) directive
    2. lodge a grievance under a modern award
    3. lodge an industrial dispute with the Queensland Industrial Relations Commission (QIRC)
    4. lodge a complaint to the Queensland Human Rights Commission (QHRC) in relation to alleged sexual harassment (within 12 months of the alleged conduct occurring) under chapter 7, part 1 of the AD Act, and also, apply to the QIRC for an order, if required, to protect an employee’s interests by prohibiting a person from actions that might prejudice:
       1. the investigation or conciliation of a complaint
       2. an order that the tribunal might make after a hearing.
    5. refer a complaint from the QHRC to the QIRC if it is unresolved by the QHRC, or unresolved after 6 months of lodging it with the QHRC.
12. Where an employee chooses to make a formal grievance regarding an allegation of sexual harassment under the IEG directive, the IEG process is modified as follows:
    1. an individual employee grievance about sexual harassment is to be made to the chief executive or their delegate
    2. the individual employee grievance is to be considered by the chief executive, or their delegate
    3. to be a formal grievance, the individual employee grievances must be in writing and must include sufficient information to enable the chief executive, or their delegate, to take appropriate action, including outlining the action the complainant considers would resolve the grievance
    4. alternate dispute resolution strategies, including facilitated discussion, mediation, conciliation or negotiation, may be offered but should only occur if agreed to by the complainant
    5. a decision about an individual employee grievance should be made as soon as possible but must be made within 14 calendar days of receipt of the individual employee grievance unless the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement
    6. after a decision has been made about an individual employee grievance, including a decision to take no action, the entity must provide a written decision to the complainant who submitted the grievance. The decision must:
       1. outline the action taken to manage the individual employee grievance and the outcome of the action
       2. provide the reasons for the decision, or the decision to take no action
       3. outline any action that the agency proposes to take, or will take, as a result of the decision.
    7. if the complainant is dissatisfied with the decision made about their grievance, the employee may seek an external review under stage 3 of the IEG directive.
13. Communication obligations:
    1. where a complainant advises they are represented by a union, the union must be included in correspondence in relation to the management of the matter
    2. the entity must also provide the complainant, if requested, with advice on the outcome of management action taken and the outcome of any discipline process arising from the grievance. This is an authority to disclose information to a complainant/s under Information Privacy Principle (IPP) 11 subsection (1)(d) and National Privacy Principle (NPP) 2 subsection (1)(f) of the Information Privacy Act 2009 and any successor/s to any privacy principles resulting from legislative review.
    3. the complainant must keep confidential any information provided relating to management action or discipline outcomes relating to another employee. However, the complainant may disclose the information as required by law. The complainant may also disclose the information to an immediate family member, support person, union representative or confidential counsellor, provided that any such person agrees to keep the information confidential.
14. Where an employee is the subject of a sexual harassment allegation the employee is entitled to:
    1. continue to be treated with respect by all people in the workplace, be supported in the workplace and not be victimised or treated differently because of being subject to an allegation of sexual harassment
    2. access advice on their rights and support options including access to the entity’s employee assistance service, or union representation
    3. be provided with procedural fairness throughout any investigation of the reported allegation/s.

11. Possible outcomes

11. Where allegations of sexual harassment are substantiated, the chief executive will take action that is consistent and proportionate for the allegations that are substantiated. The possible outcomes will also depend on whether an informal resolution or a formal grievance was preferred by the complainant. Possible outcomes include, but are not limited to:
    1. disciplinary action, e.g. reprimand, demotion or dismissal
    2. a change to working hours or locations
    3. an apology
    4. agreement on protocols to manage the relationship in the future
    5. refresher sexual harassment awareness and prevention training
    6. coaching or performance counselling.

12. Reporting and data collection

12. Each public sector entity is required to report on the implementation of this directive and other data as determined by the Commissioner.

13. Transitional provisions

13. The following transitional arrangements will apply for allegations of sexual harassment:
    1. Where a grievance has been lodged under the individual employee grievance directive prior to commencement of this directive, clause 10.3 (which modifies the process for a grievance involving sexual harassment) does not apply to the grievance, and the remainder of the directive applies to any step and decision made after commencement and does not apply to any step taken or decision made prior to commencement
    2. Where the complaint or dispute (other than a grievance under the individual employee grievance directive) was made prior to this directive commencing, this directive will apply to any steps and decision made after commencement and does not apply to any step taken or decision made prior to commencement
    3. Where alleged sexual harassment occurred prior to this directive commencing, and the complaint, grievance or dispute was made after commencement, this directive will apply.
14. To allow time for staff consultation and implementation, an entity workplace sexual harassment prevention and response policy under clause 8.1 and clause 9 is to be in place by 1 February 2024. In exceptional circumstances, the Public Sector Commissioner may grant an entity additional time for this to occur.
15. Implementation of person-centred support under clause 8.1(g) is to be in place by 1 July 2024.
16. Training requirements set out in clause 8.1(b) and (c) are to be in place from 1 July 2024.

Unless otherwise provided, the terms in this directive have the meaning prescribed in the Act.

Cultural capability has the meaning provided for under chapter 1, part 3, section 20 of the Act.

Reframing entity/entities has the meaning provided for under chapter 1, part 3, section 20 of the Act.

Sexual harassment has the same meaning as section 119 of the Anti-Discrimination Act 1991.

Sexual harassment happens if a person:

1. subjects another person to an unsolicited act of physical intimacy. For example: physical contact such as patting, pinching or touching in a sexual way, or unnecessary familiarity such as deliberately brushing against a person
2. makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person. For example: sexual propositions
3. makes a remark with sexual connotations relating to the other person. For example: unwelcome and uncalled for remarks or insinuations about a person’s sex or private life, or suggestive comments about a person’s appearance or body
4. engages in any other unwelcome conduct of a sexual nature in relation to the other person. For example: offensive telephone calls, or indecent exposure
5. and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so:
   1. with the intention of offending, humiliating, or intimidating the other person, or
   2. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated, or intimidated by the conduct.

Person-centred involves the individual being at the centre of decision-making and having control, as much as is possible, over the actions/services they receive.