The foundation for systemically preventing sexual harassment, sex-based discrimination and harassment, hostile workplace environments and victimisation is the positive duty which now applies across Australia to employers and people conducting a business or undertaking. They must take reasonable and proportionate measures to eliminate, as far as possible, these harmful behaviours.

This new regulation means that it that is no longer sufficient for organisations to merely rely on complaints being made by persons affected, and expect them to do so at a time when they are vulnerable. The harm has already occurred by that stage and it is clear from the data that these behaviours are significantly under-reported in Australia. In practice, organisations are now shifting their focus from having zero tolerance of these behaviours to how they can ensure zero harm in their workplaces. This necessitates deep consideration of workplace culture and how organisations are enabling or obstructing prevention.

Organisations will discharge the positive duty when they prevent these behaviours occurring – by creating the foundation for a safe and respectful culture – and sustaining and monitoring that culture over time. Workplace cultures of this kind build psychological safety and trust that organisations are committed to preventing these harmful behaviours because they precipitate organisations taking appropriate responses to these behaviours. It is this visible accountability which prevents these behaviours happening in the first place.

Building an Australian System to prevent sexual harassment and hostile workplace environments

Eight trends that drive respectful workplace environments and prevent harm

As workplaces reflect on what changes are needed to comply with the positive duty, positive trends are emerging.

1. Organisations are embedding change into the 'S' of ESG

Good cultures that drive respectful workplace environments and prevent harmful behaviours are viewed as an essential social consideration and part of an organisation's environmental, social and governance mandate. This area is under the spotlight for investors, clients, employees and potential employees – as well as government, regulators and the media.

2. Boards are more active and engaged

Greater board engagement generally leads to more thorough audits, reviews and gap analysis. Good data is critical in enabling boards to discover and transform an organisation's culture to its desired state, and, based on our experience, board engagement is an important step.

3. Existing structures and processes are being consolidated and integrated to better enable prevention

Organisations are integrating their business structures and processes in a human-centered and holistic manner to ensure everyone across their business is collaborating in preventing harmful behaviours in a systemic way. Some are creating specialised, integrated units, drawing on skill sets across human resources, WHS, business integrity, and legal. They are ensuring that those dealing with harmful behaviours have been trained to undertake their roles in a trauma-informed manner and that workers have anonymous reporting options.

4. Data collection and pulse surveys are being revamped

Regular employee pulse or climate surveys and reviews are moving to incorporate more direct, targeted questions to understand the prevalence of harmful behaviours and how workers perceive that the organisation is enabling or preventing these behaviours. With less ambiguity, organisations are able to obtain a better understanding of the experience of their employees and what changes need to be made.

5. Organisations are being more transparent in relation to what they are learning and how those learnings are informing their actions to prevent harmful behaviours

When organisations are transparent about the prevalence of harmful behaviours at their workplaces, what they are learning and how those learnings are informing their actions to prevent these behaviours occurring in the first place, they are building trust and sending an important message about their commitment to the culture of prevention that the organisation is seeking to build.

6. Former employees are being included in the conversation and providing insights for prevention

As trust builds that organisations are taking the prevention of harmful behaviours seriously, some organisations are being contacted by former employees who wish to discuss the impact of their experiences. Some organisations are drawing on restorative engagement to ensure that they are dealing with these historical matters in a sensitive manner which does not cause further trauma.

7. Harmful behaviours are treated as a Workplace Health and Safety risk

Sexual harassment, sex-based harassment and discrimination, hostile work environments and victimisation have always been a WHS risk – but in the most part, not managed as such. With the introduction in many states and territories of laws regarding psychosocial hazards, more organisations are now focusing on proactive management of these hazards. Reports to the board on WHS should address psychosocial hazards and must provide enough detail for officers to be able to assess what risks are identified and how they are being managed and monitored.

8. Reporting is expanding and becoming more detailed

Recent amendments to the Workplace Gender Equality Act 2012 to impose from 2024 more rigorous reporting on workplace data that provides insights into the prevalence and prevention of sexual harassment, related behaviours and use of non-disclosure agreements means organisations are now considering the quality and regularity of reporting on these issues to their executive leadership and boards.

What questions should boards or executive teams be asking now?

The Sex Discrimination Commissioner will have the power from 12 December 2023 to enforce the positive duty and investigate systemic discrimination. Boards and executives may be assisted to ask the following questions:

• Does our governance framework clearly articulate accountability for the prevention of sexual harassment and other harmful behaviours?
• Do we have a data-informed strategy to create and maintain a safe and respectful culture that prevents sexual harassment and related inappropriate conduct? Is it good data? Does the data give us insights into our culture, where we are going well and risk areas for attention?
• Have we identified and prioritised the changes which will have the greatest impact? Can we achieve our timeline? What will accelerate these changes? What obstacles may we encounter?
• How will we monitor the execution and impact of our strategy? What metrics and tools do we have to measure success?
• How will we communicate our strategy?
• Is our organisation structured, and our people equipped and supported, to respond to harmful behaviours in a holistic, human-centred and integrated way?
• Do our systems and processes clearly set out expectations and accountabilities and capture systemic issues so they can be rectified? Are we confident those processes do not exacerbate harm or trauma to all involved?
• Do we have a foundation of updated policies, training, education and understanding of our legal obligations?
• Do we have psychological safety in reporting concerns?
• Do our people understand and feel safe in their execution of their responsibilities as bystanders/upstanders?
• Do our people know where and how to raise concerns? Do we have multiple avenues to raise concerns and have an anonymous reporting option?
• Do we have options for resolution that are human-centered and do not automatically default to investigations? If not, what needs to change?
• What is our approach to transparency? What is our approach to the use of confidentiality clauses in settlement agreements? Are we following the Best Practice Guidance issued by the Respect@Work Council?
• What are our stories to share in de-identified ways to bring the humanity to this issue and engage our people in its importance? What have we learned to inform our approach to prevention in the future?
• Is our reporting to the Board and Executive leadership team sufficient and helpful?
• Are we identifying hazards prior to harm occurring or if not, once identified, are the hazards being managed and monitored on an ongoing and continuing basis?
• Have do we engage with our former employees when they raise historical matters?
• What is happening in our industry? What do our stakeholders expect?

Steps to create respectful workplace environments

In addition to what we have discussed above, to ensure a safe and respectful workplace environment and meet legal obligations, effective risk management is critical.

To manage risks effectively, organisations need to undertake risk identification and assessment, document and retain their findings and make them accessible to regulators.

Monitoring the system is also crucial. Responsibility should be clearly defined, with regular spot checks, audits and reviews of results. Reporting is also important – compiling relevant information and ensuring that boards receive enough information to satisfy their duty of due diligence.

Organisations need to conduct as a minimum: safe workplaces training, inductions, the review and update of policies, and bystander training.

Consultation is vital. Engaging staff and third parties, such as contractors and concurrent duty holders, to ensure that all stakeholders understand and manage risks effectively so that workplace harm is prevented.

Find out more about your regulatory obligations in An emerging Australian system to prevent sexual harassment and hostile workplaces.