Overview
Taking as their starting point the findings and recommendations in the Australian Human Rights Commission's landmark Respect@Work report, the government's response to the report and recent events, an expert panel (Evelyn Pollard, Theo Kapodistrias, David Dilger, Ross Springolo and Tania Sargeant) convened by the Governance Institute, discussed the challenges for individual organisations, for boards and for management in tackling workplace sexual harassment.
A high level overview of some of the key themes to emerge from the discussion is below.
Taking a proactive approach
The panel spoke at length about the source of employers' existing legal obligations to provide a respectful, safe working environment and the extent to which this already includes ensuring an environment that is free of sexual harassment.
There was discussion around the need for organisations to review their current approach to the issue in light of the strong focus in the Respect@Work report (report) on the need for employers to shift from a reactive/defensive approach, to a proactive one focused on prevention, and in light of the evolving interpretation of existing obligations. The panel also observed that though there is currently no positive legal duty on employers to prevent harassment per se, the report recommends that this should change (recommendation 17) and that this is something employers should be aware of.
In light of this, it was suggested that it would be prudent for organisations to ensure that they are able to demonstrate (if called upon to do so) what active steps they have implemented to ensure a safe working environment. From a practical perspective it was suggested that this could include: a) having easily accessible, clear and detailed policies in place around identification and reporting of unacceptable behaviour; b) having in place clear complaints handling and investigation mechanisms/policies; and c) providing an effective induction and ongoing training program.
Should conduct be a new risk category?
Asked to comment on whether there is a new risk category around conduct, Theo Kapodistrias said that there isn't but that perhaps this is something that would be helpful/should be considered, given the importance of managing the risk.
A trigger for action
Evelyn Pollard observed that the response from organisations to the report has so far been mixed. She said that there has been a shift, in some organisations, to a more proactive stance on the issue. For example, she has observed that there has been an increased focus (in some cases) on ensuing detailed, formal policies/procedures are in place as well as a renewed emphasis on rolling out tailored, organisation-specific training programs.
However, in other organisations there continues to be resistance to the idea, and the finding in the report, that the issue is widespread in Australian workplaces. Boards and management (in some organisations) continue to assume that the findings do not apply to them/that the issue does not exist within their workplace.
There was also discussion around the importance of basing an assessment of whether action is needed (and what action might be appropriate) on data, rather than on assumptions. It was suggested that the report could potentially act as a trigger for this assessment - that is, as a starting point, organisations could check whether the issues identified in the report are present and plan their actions accordingly.
'Clear is kind': The challenge of setting explicit standards of expected behaviour
David Dilger said that from a practical perspective, one of the key challenges for organisations in terms of ensuring a safe working environment, is first determining and then communicating to everyone within the organisation, what the accepted standards of behaviour are. For example, it was suggested that the wording used in some policies eg simply stating 'don't use inappropriate language' is, in practice, not helpful because it does nothing to explain what acceptable or unacceptable language or behaviour look like. This approach leaves room for genuine misunderstandings across genders, generations and roles around what is or is not acceptable.
Quoting Brene Brown, Mr Dilger observed that, especially in this context, being 'clear is kind'. He suggested that having open, facilitated discussions on a semi-regular basis on this issue could be a powerful tool for organisations to determine what acceptable behaviour within their specific workplace looks like – noting that what will be acceptable will vary across workplaces and will change over time.
The importance of being explicit and specific in this context was emphasised. In order to be effective, he said that there needs to be shared understanding that certain behaviours that may have been perceived as 'harmless' by some within the organisation, and that may have been tolerated/accepted in the past, are no longer acceptable.
The inclusion of specific rules backed by examples of acceptable and unacceptable behaviour, can be helpful in setting this expectation, in building consensus/buy in and also useful from an organisational perspective, in evidencing what the acceptable standard of behaviour is within the organisation (should it be necessary to do so).
Asked to comment on how organisations could deal with the challenge of employees who may be are unaware that their comments/behaviour are offensive and/or who are of low emotional intelligence, the panel underlined the importance of effective training on the issue and the importance of leaders taking active and early steps to address instances of unacceptable behaviour as they arise.
Calling out unacceptable behaviour and having 'awkward conversations'
Another theme of the discussion was responsibility for calling out and addressing behaviour as/when it occurs.
There was consensus on the importance of acting early to address poor behaviour to prevent escalation/reinforce acceptable standards. For example, there was agreement that should a leader within the organisation observe an inappropriate joke, or should an instance of this be reported to them, that the leader should feel able to initiate (in a timely manner) a private conversation with the person to explain why the behaviour was unacceptable. Though the panellists acknowledged that this could be 'awkward', it was emphasised that intervening early in this way is far preferable to potentially having to deal with a formal complaint should the behaviour be repeated/go unchecked.
There was agreement that the same standards should apply at all levels of the organisation – including at board level/senior management level. In the board context, it was agreed that the Chair has primary responsibility for enforcing acceptable behavioural standards. Where the Chair's behaviour is in question, responsibility would fall to the next most senior board member.
Where a formal complaint is raised, Ms Pollard emphasised the importance of leaders listening to the complainant and taking time to understand what they would like to see happen. In some instances she said leaders tend to immediately 'jump in' without first taking this step. For example, they might immediately put forward a solution and/or negate that there is a problem to be dealt with, and/or immediately look for evidence. The first response, before initiating any action she said needs to be listening in a way that makes the complainant feel safe.
There was also discussion around the importance of having a straightforward and readily accessible complaints handling process in place.
The role of the board
As with any form of risk, the panel agreed that the board needs to play a pivotal role in ensuring that the issue is being monitored and managed effectively. From a cultural perspective, it was agreed that the board needs to set the tone from the top and model the desired behaviour.
From a practical standpoint, Ross Springolo observed that though boards cannot know every aspect of the organisation, they do have statutory duties they are bound to fulfil including ensuring that appropriate policies/procedures, training and complaints handling and reporting mechanisms are in place and taking active steps to satisfy themselves of their effectiveness.
Mr Springolo also underlined the need for boards to look on the issue as something that needs constant and active monitoring. This could include, for example, boards sitting through the same induction provided to new employees (and possibly the ongoing training) provided to employees on the issue, to ensure that they have an understanding of what standards are being communicated and that this accords with the desired organisational standard/the standard they as leaders are expected to model. This is also important, it was suggested, from the perspective of ensuring consistency in approach to the issue.
It was also suggested that boards could review complaints data and/or review existing policies and procedures for clarity and comprehensiveness and ask questions should there be any concerns and/or opt to commission an external assessment of the organisation's approach to the issue – eg a review of policies/procedures/training materials etc – to aid in this assessment.
Buy-in across the organisation
Though there was consensus that the board has a crucial role in this context, it was also agreed that setting and maintaining strong workplace culture is impossible without buy-in from all levels of the organisation. Having authentic and regular facilitated discussions about acceptable vs unacceptable standards, ensuring training keeps pace with these conversations and providing training on a regular basis across all levels of the organisation were seen as important in this context.
Likewise, consistency in applying agreed standards of behaviour was emphasised. That is, what is acceptable 'on the shop floor' needs to be consistent with what is acceptable in the boardroom.
The need for ongoing monitoring, training, adjustments and reinforcement
The panel underlined the need for organisations' approach to sexual harassment to continually evolve with changing internal and external expectations and legal requirements. It was made clear that training on the issue should not end with induction and that a 'tick box', compliance based approach to training is insufficient.
Rather, the panellists agreed that training should be provided on a semi-regular basis and possibly take the form of regular facilitated discussions on acceptable vs unacceptable standards (documented after the fact and reflected in updated policies, procedures and training).
Mr Dilger also observed that organisations need to accept the shift in the conversation away from compliance. The expectation among employees, and what staff value, is a conversation and commitment to defining what a respectful workplace looks like, setting reasonable, shared expectations of behaviour (backed by examples) around that, and enforcing those standards.
Putting in place the right incentives – no one size fits all approach
Asked to comment on whether there are specific key performance indicators that could/should be used to support strong culture, Ms Pollard said that there is not one-size-fits all approach. Rather, when looking at setting KPIs organisations need to focus on and clearly identify what they are trying to achieve/trying to change and design a response accordingly.
Measuring culture/identifying issues?
Asked to comment on whether there are ways to improve the effectiveness of employee surveys the panel suggested that the following could assist: a) ensuring that workers 'see the point' of answering surveys (making sure that follow up actions/progress are communicated); b) keeping survey questions brief and targeted; and c) ensuring the anonymity of responses.
[Source: This article is based on notes from the Governance Institute panel discussion: VIRTUAL Red Flag Briefing: Respect, Behaviour & Governance 10/06/2021]
