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https://www.minterellison.com/articles/start-managing-sexual-harassment-in-the-workplace-differently

Start managing sexual harassment in the workplace differently

5 minute read  23.02.2021 Kristy Edser, Amanda Watt

Safework Australia has released its guide on preventing workplace sexual harassment. We review the Guide's key processes to minimise the risks of sexual harassment in the workplace and what business should do.

Start managing sexual harassment in the workplace differently.

Safework Australia has released its guide on preventing workplace sexual harassment. We explore the Guide's key processes to minimise the risks of sexual harassment in the workplace and what business should do.

SafeWork Australia's 'Preventing Workplace Sexual Harassment' (Guide) is significant. For the first time, employers have national guidance from Safework Australia on an issue that impacts the health of too many workers each year.

State safety regulators have previously confirmed that sexual harassment is a work health and safety (WHS) issue. Yet the lack of any published guidance or a Code of Conduct has meant many employers have never properly considered sexual harassment as a WHS risk

35 years on, sexual harassment remains

While it has been over 35 years since Australia introduced the Sex Discrimination Act, sexual harassment remains prevalent in Australian workplaces.

In 2018 the Australian Human Rights Commission commenced their national inquiry into sexual harassment. The result was the [email protected] report released in 2020. The report confirmed what many suspected - that sexual harassment is a systemic issue:

  • 1 in 3 workers stated they had been sexually harassed at work in the last 5 years
  • Only 17% of workers who were sexually harassed reported it to their employer

In the report, the Sex Discrimination Commissioner, Kate Jenkins, made 55 recommendations. Two significant recommendations:

  1. sexual harassment to be properly recognised as a WHS issue and for guidance to be developed for a Code of Conduct
  2. that the federal legislation be amended to impose a positive duty on all employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.

Sexual harassment is a workplace safety risk

The clear message of the Guide is that employers, or (using WHS definitions) Persons Conducting a Business or Undertaking, must treat sexual harassment like any workplace safety risk. This means identifying the risk, assessing the hazard, implementing control measures and reviewing those controls regularly.

Identifying Risk Factors

The Guide sets out several risk factors that can be identified, including workplaces where:

  • there is low workforce diversity
  • power imbalances or a hierarchical structure exists
  • the culture tolerates any form of harassment
  • alcohol is used in a work context – i.e. social functions with clients
  • isolated or remote work occurs frequently
  • there is a high level of third party interactions – i.e. customers and clients
  • leadership appears to have a poor understanding of sexual harassment

Assessing Hazards

The Guide also sets ways in which the hazard can be assessed in a workplace including by:

  • assessing the physical and on-line environments
  • observing the workplace and leadership culture
  • conducting anonymous work surveys
  • undertaking exit interviews
  • trend spotting – e.g. increased absenteeism in a particular area

Controlling risks

The Guide recommends a proactive approach that involves:

  • examining the control measures in place
  • ensuring workplace behaviour policies are known by staff and address all the content they need
  • encouraging staff to report
  • responding promptly and in a supportive way when a report is received
  • taking appropriate disciplinary action when it is substantiated that sexual harassment or any misconduct has occurred
  • training for staff on induction and then at regular intervals for all staff and managers (this training should also identify third party risk and encourage bystander intervention)
  • creating a diverse workforce

Reviewing controls

The Guide recommends checks occur at regular intervals to ensure the controls are working. A review may need to occur earlier if:

  • an incident is reported
  • a significant workplace change occurs, or
  • there is feedback that the controls are not effective.

Other Materials and support

The Guide is part of a suite of material that has been introduced. Other relevant resources include:

Legal consequences of workplace sexual harassment

The Guide and is not yet a Code of Conduct. However, if sexual harassment occurs, it would be prudent for an employer to comply with the Guide.

Taking steps to prevent sexual harassment is a must for employers (and PCBUs), and not just to avoid breaching WHS laws.

A breach of WHS laws could result in significant penalties being imposed against the employer and the individuals involved. Liability could also extend to officers who have failed to discharge their own duty to ensure the employer was taking all reasonably practicable steps to prevent the risk from occurring.

As well as breaching the WHS Laws, sexual harassment in the workplace has a number of other serious consequences including:

  • trauma experienced by those sexually harassed
  • exposure to legal claims including – e.g. for sexual harassment, adverse action, workers compensation, work injury damages or breach of contract
  • a detrimental effect on other staff and workplace culture, psychological safety, productivity and business performance
  • poor retention and recruitment
  • significant damage to a business' reputation through media scrutiny and fallout from shareholders or clients.

Compliance with the Guide may provide a basis for an employer to defend other claims for an incident, if it took all reasonable steps to prevent the conduct.

8 preventative measures for your workplace

We recommend as a starting point that you:

  1. identify the risks in your workplace
  2. review your current systems and controls
  3. identify any gaps that you may have, including the expectations on bystanders and the ability to identify systemic issues in the workplace
  4. review training of all staff and the Board, and the effectiveness of that training
  5. ensure policies contain what they need to, are available and known to staff
  6. ensure reporting processes are in place and that staff are aware of and trust them
  7. be clear on your position in relation to transparency of the issue and use of non-disclosure agreements
  8. ensure Board reporting includes details of steps taken to comply with the Guide and of any incidents that arise, and highlights any emerging systemic issues

If you already have these controls in place, consider if they are sufficient and are consistent with the Guide.

We can help you by:

  • undertaking a gap analysis
  • updating or providing compliant policies
  • delivering training for staff and leaders
  • conducting Board and executive leadership briefings.

For further practical guidance for Boards and leaders, the Champions of Change Coalition (formerly known as Male Champions of Change) released the Champions of Change Coalition Disrupting the System – Preventing and Responding to Sexual Harassment in the Workplace paper which also offers additional guidance for leaders in every organisation. Amanda Watt, Workplace Partner, was a contributor.


 

 

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https://www.minterellison.com/articles/start-managing-sexual-harassment-in-the-workplace-differently

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