There is much speculation as to the future of diversity, equity and inclusion programs in Australian businesses given recent political and workplace discussions at home and abroad.
While much of the speculation about Australian businesses appears to be focussing on political values and the “business case” for or against diversity programs, it is critical that Australian business leaders consider the psychosocial risk perspective on gender diversity and ensure that their decision-making on this issue aligns with their obligations under work health and safety laws.
Under the model Work Health and Safety Act (which has been adopted in all states and territories, other than Victoria) persons conducting a business or undertaking
(PCBUs) must ensure, so far as is reasonably practicable, workers and other persons are not exposed to risks to their psychological or physical health and safety, including risks from psychosocial hazards such as sexual and gender-based harassment. In order to comply with this duty, PCBUs are required to implement the most effective control measures for sexual and gender-based harassment that are reasonably practicable in the circumstances.
The
model Safe Work Australia Code of Practice “Sexual and gender-based harassment”
(the Code of Practice) provides practical guidance to PCBUs on how to achieve the standards of work health and safety required under the model Work Health and Safety Act and the model Work Health and Safety Regulations, and effective ways to identify and manage risks. The Code of Practice expressly identifies “lack of diversity in the business or undertaking” and “power imbalances along gendered lines” as factors that increase the likelihood of sexual and gender-based harassment. Accordingly, understanding these issues, through obtaining and reporting on relevant gender diversity data, and implementing systems to address a lack of diversity, are ways to mitigate the risk of sexual harassment. The Code of Practice then gives examples of how an organisation can influence workplace interactions and behaviours to minimise the risks of sexual and gender-based harassment, including to “implement policies and strategies to address gender inequality, lack of diversity and power imbalances at work.”
The psychosocial risk perspective on diversity is even more explicit under the Work Health and Safety Regulation 2011 (QLD)
(QLD WHS Regulation), which was recently amended to expressly require PCBUs to manage the risk of sexual harassment and sex or gender-based harassment. The QLD WHS Regulation prescribes certain matters which must be taken into account in determining the control measures to implement, which relevantly include “matters relating to the characteristics of the workplace or the work environment such as a lack of diversity, generally, or in management positions”.
The express recognition of sexual and gender-based harassment as a psychosocial risk and obligations on PCBUs to implement control measures to eliminate or minimise this risk, so far as is reasonably practicable, should be kept front of mind by business leaders, safety professionals and human resource practitioners when considering/reviewing diversity and inclusion programs in Australia. A key question for consideration by PCBUs is whether the organisation’s diversity and inclusion program is consistent with the organisation’s obligation to implement the most effective control measures to mitigate the risk of sexual and gender-based harassment that are reasonably practicable in the circumstances.
