Emily Howie, General Counsel and Director of Dispute Resolution at the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) recently spoke to members of the Justitia community about the VEOHRC’s investigation into the adequacy of Bakers Delight Holdings’ (Bakers Delight) framework for preventing and eliminating sexual harassment in the workplace.
The Bakers Delight investigation focused on whether Bakers Delight has complied with its obligations under the Equal Opportunity Act 2010 (EO Act). The resulting 30 page Investigation Report and Compliance Agreement between Bakers Delight and the VEOHRC provides an opportune blueprint for employers to consider the steps their organisation needs to take to minimise the risks of non-compliance with their obligations under the EO Act.
Why does the burden fall on employers?
Under the EO Act, duty holders (such as employers) have an obligation to take ‘reasonable and proportionate’ measures to prevent workplace sexual harassment, as far as possible. This obligation is known as the ‘positive duty’. It requires an employer to take more proactive steps in preventing and eliminating sexual harassment instead of just responding to it when individual complainants come forward with allegations.
The positive duty is unique to Victoria, although there is currently a bill before Parliament that if passed, will implement the duty at the national level following the recommendation of the Respect@Work report.
Bakers Delight Investigation
The 9-month Investigation reviewed a three-year operational period and had two main objectives; firstly, to examine whether Bakers Delight had complied with the positive duty to eliminate sexual harassment in its workplace and franchise network and secondly, to develop better-practice examples of what compliance with the positive duty in a franchising environment can look like. Emily explained the investigation did not involve investigating individual complaints and was more of an “audit-like” process, to determine what systems Bakers Delight had in place to prevent sexual harassment.
The investigation process involved:
- assessing Bakers Delights’ policies and procedures
- assessing their training packages and complaint handling system
- interviewing Human Resource staff on their training and understanding around workplace sexual harassment and how to respond to allegations
In 2020, the VEOHRC published a Guideline on Preventing and Responding to Workplace Sexual Harassment in accordance with the EO Act (Guideline). The Guideline included six minimum standards for compliance with the EO Act. The VEOHRC focused on two of the standards against which to measure Bakers Delight’s compliance; standard 2 – whether Bakers Delight has a prevention plan that is underpinned by an assessment of sexual harassment risks and standard 3- whether Bakers Delight has policies and complaint handling channels in place that are comprehensive, accessible by and communicated to all employees and conducts regular training for employees.
The investigation found gaps in Bakers Delights compliance with the positive duty and recommended the following steps that employers should take to minimise non-compliance:
- Develop a prevention plan on the measures the organisation will take to prevent and respond to workplace sexual harassment. A good starting point for many employers here is to look at their existing work health and safety framework and assess it for any risks or gaps.
- Ensure there are sexual harassment policies in place with clear complaint handling channels outlined.
- Provide training to all employees on preventing sexual harassment, the organisations policies and procedures and ensure employees who are responsible for receiving allegations of sexual harassment are also trained on how to deal and respond to these allegations.
Justitia thanks Emily warmly for her time and for sharing the VEOHRC’s insights in this area with the Justitia community. If you would like further information on how your organisation can comply with its positive duty on preventing sexual harassment in the workplace, please contact Nancy Abdalla, Associate or us at Justitia on 03 8621 4500.