Work-related gendered violence and the law

Duties and the law

Employers, employees and others have specific duties relating to work-related gendered violence (including work-related sexual harassment) under the Occupational Health and Safety Act 2004 (OHS Act) and the Equal Opportunity Act 2010 (EO Act).

Acts such as indecent exposure, stalking, sexual assault and obscene or threatening communications (for example phone calls, letters, emails, text messages and posts on social networking sites) may also be offences under criminal law. Victims may want to report criminal offences to the police.

OHS Act duties

Employers

Under the OHS Act, employers must provide and maintain a work environment that is safe and without risk to the health of their employees, so far as is reasonably practicable. Employees include independent contractors and any employees of the independent contractor.

Employers must eliminate risks to health and safety so far as is reasonably practicable. If it is not reasonably practicable to eliminate the risks they must be reduced so far as is reasonably practicable.

Employers must provide and maintain safe systems of work, and give employees the necessary information, instruction, training or supervision to do their job safely and without risks to health.

Employers must consult with health and safety representatives (HSRs) and their employees about health and safety issues that may directly affect them. Consultation about gendered violence must occur when:

• identifying or assessing hazards or risks in the workplace
• making decisions about measures to be taken to prevent and manage gendered violence risks
• making decisions about procedures to resolve health or safety issues
• making decisions about procedures to monitor employee health
• making decisions about information and training on work-related gendered violence
• proposing changes that may affect the health and safety of employees

Employers must also ensure, so far as is reasonably practicable, that people other than employees are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

Self-employed persons

Self-employed persons must ensure, so far as is reasonably practicable, that people are not exposed to risks to their health and safety arising from their conduct.

Persons with management and control of a workplace

Persons with management and control of a workplace must ensure, so far as is reasonably practicable, that the workplace is safe and without risks to health.

Persons with management and control of a workplace must ensure, so far as is reasonably practicable, that the workplace is safe and without risks to health. Those with management and control are not always employers or employees. These people also have a duty to ensure that the workplace is safe and without risks to health, including from gendered violence and sexual harassment, for matters over which they have management or control.

For example this may include persons appointed to a position, such as judicial officers or tribunal members who work with associates and other court staff in chambers and have a level of management and control over that workplace and those court staff. Another example may be board members of an organisation or mayors/councillors working with council staff.

The conduct of judicial officers and VCAT members is regulated by the Judicial Commission of Victoria (JCV), which has professional standards functions including setting standards of conduct. For more information about the guidelines for judicial conduct in Victoria, or to lodge a complaint about a judicial officer or VCAT member, visit the JCV's website

Employees

Employees must take reasonable care of their own health and safety in the workplace, and the health and safety of others who may be affected by what they do or don't do. Employees must also cooperate with their employer on any action taken to comply with the OHS Act.

EO Act duties

Work-related gendered violence may constitute sexual harassment, unlawful discrimination or victimisation (treating someone adversely because they have made, or may make, a complaint) under the EO Act.

Under the EO Act, employers have a duty not to engage in discrimination or sexual harassment, and to take reasonable steps to eliminate these behaviours.

An individual who discriminates against or sexually harasses another person in the workplace can be held responsible, and therefore legally liable, for their behaviour.

Employers can also be held legally responsible for acts of discrimination or sexual harassment by their employees or agents if they occur:

• in the workplace, or
• in connection with a person's employment.

This is known as vicarious liability.