Sexual harassment remains worldwide an alarming issue, transcending borders, cultures, and industries. Australia is no exception. Shockingly, 1.3 million Australian women experienced sexual harassment during 2021-2022, while one in three Australian workers has faced such behaviour at their workplace in the past five years.
Under the Equal Opportunity Act 2010 (Vic) (EOA) and the new positive duty introduced at the federal level by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work), employers are required to take, as far as possible, reasonable and proportionate measures to eliminate sexual harassment at the workplace.
The enforcement of the duty to prevent sexual harassment under the Victorian EOA has been limited. However, starting on 12 December 2023, the Australian Human Rights Commission (AHRC) will be empowered to monitor, investigate and ensure compliance with the new positive duty established in Section 47C of the Sex Discrimination Act 1984.
To comply with this duty, we suggest some key steps, which are also expanded upon in materials published by the AHRC:
1. Understand your current situation: Conducting a workplace review is an essential initial step to gauge the organisation’s culture, collect important data, and pinpoint potential concerns. The central question to address at this stage is whether staff members have witnessed incidents of sexual harassment and if they feel comfortable reporting such behaviours.
This assessment will equip the organisation with the necessary insights to develop a comprehensive and targeted action plan.
2. Constant and up-to-date training: Preventing sexual harassment at the workplace requires informed employees across all levels. Staff members must be trained on the different forms of unlawful conduct, their roles and responsibilities within the organisation, and the relevant policies and procedures.
Training should be consistently updated to align with changes in the law. Utilising real-world examples from relevant cases can provide a practical understanding of legal concepts. Maintaining records of training content, duration, attendees, and instructors will demonstrate compliance with the positive duty. Additionally, all written materials should be accessible to all staff members, ideally through the organisation’s digital platforms.
3. Board and senior executives’ active participation: The organisation’s top-level management must actively engage in preventing workplace sexual harassment. This involvement demonstrates the organisation’s commitment to comply with the positive duty. We suggest the following:
- conduct tailored training sessions on sexual harassment;
- lead communication campaigns that create awareness and set the tone for the entire organisation;
- establish an institutionalised response to sexual harassment incidents; and
- develop and implement clear accountability frameworks for senior employees and executives, as power imbalances and a lack of accountability are among the drivers behind unlawful conduct.
4. Practices, policies and procedures: Having clear, well-written policies and procedures in place is essential. According to the AHRC, a comprehensive policy must include:
- a general statement confirming the organisation’s legal obligation to eliminate sexual harassment and provide a safe working environment;
- a definition of sexual harassment, along with practical examples of behaviours that may constitute such conduct;
- detailed reporting procedures, resolution options;
- a clear statement that emphasises a person-centred and trauma-informed approach, including that the safety and wellbeing of the person disclosing or reporting relevant unlawful conduct is a priority for the organisation or business;
- recognition that sex discrimination, sexual harassment and sex-based harassment and conduct that creates a hostile workplace environment on the ground of sex have underlying drivers, such as gender inequality;
- information about available supports for individuals experiencing or witnessing unlawful conduct;
- clear explanation of the potential actions following a report or confirmed unlawful conduct, including possible consequences;
- monitoring and evaluation of policies;
- information about external agencies providing advice, support, and information related to unlawful conduct, including the option to report criminal conduct to the police.
5. A person-centred and trauma-informed approach to reporting and addressing sexual harassment complaints: The focus should not only be on addressing the immediate issue but also on understanding the broader context of trauma. It involves acknowledging the potential emotional, psychological, and physical distress that impacted individuals may feel, and ensuring that their needs are met with seriousness, sensitivity and compassion.
To achieve this, organisations can consider several practices. These include engaging experienced workplace investigators trained in trauma-informed methods, implementing a robust anti-victimization policy, striking a balance between confidentiality and procedural fairness, and offering special accommodations or flexible working arrangements.
6. External audits: Regular external audits can serve as a valuable tool for monitoring an organisation’s culture and procedures. However, it is crucial to take meaningful action in response to the findings.
AHRC have advised they will be releasing template policies in late 2023 (so watch this space), and that in the meantime that they recommend employers look at the NSW Public Service Commission’s Model Policy for Sexual Harassment in the Workplace for guidance on what best practice looks like.
If you are looking for guidance on complying with the new positive duty outlined in the Sex Discrimination Act (Cth), training your staff, investigating a complaint or conducting a workplace review, please contact firstname.lastname@example.org for further information.