Only one in five Australians who have experienced sexual harassment at work make an official complaint about the behaviour.
But, thanks to Respect@Work laws, the onus on dealing with those and related issues has shifted more to employers. Prevention is key, but so is dealing with such claims appropriately. Those laws mean that since December, the Human Rights Commission (HRC) has had greater enforcement powers.
It’s worth explaining these changes. A survey of company directors found that less than half said their businesses were well-prepared to comply with the new sexual harassment standards.
New standards to be enforced
Four principles (consultation, intersectionality, person-centred, and trauma-informed) are driving the changes. From these flow the seven standards:
- Leadership: Senior leaders should have up-to-date knowledge about their obligations
- Culture: Workplaces must foster safety, respect, inclusion and value diversity and gender equality
- Knowledge: Workplaces must develop, communicate, and roll out a respectful behaviour and unlawful conduct policy
- Risk management: Take a risk-based approach to prevent and respond to unlawful behaviour
- Support: Firms must offer workers, leaders and managers access to appropriate support if they experience or witness unlawful conduct
- Reporting and response: Employers must have and communicate about options for workers and other impacted people to report and respond
- Monitoring, evaluation, and transparency: Collect suitable data for insight into the behaviour and its extent in your workforce. Assess and improve your work culture regularly.
An overview of recent reforms
The reforms span three federal laws:
- Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021, which came into force in September 2021
- Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which took effect in December
- Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, which also became law last December.
An online portal has been set up for employees, unions, as well as other bodies, to lodge complaints. The commission has the discretion to investigate complaints lodged more than 24 months after the incident happened.
What is the positive duty under the Sex Discrimination Act?
Under the ‘positive duty’ reform, employers must take “reasonable and proportionate” measures that aim to eliminate sexual harassment and more from their workplaces. This means businesses and organisations of all sizes must be proactive.
The Human Rights Commission has greater enforcement powers over these unlawful behaviours:
- Discrimination based on gender in a work context
- Sexual harassment related to work
- Conduct that creates a hostile workplace environment on the grounds of gender
- Related acts of victimisation.
Since December, the commission can assess complaints and initiate action against employers who fail in these duties. It can apply to federal courts to order a business to follow a compliance notice. The commission could also start an inquiry into the issue. Under this power, they can compel a business to produce information, and documents, and they have the power to question witnesses.
The commission’s 112-page guidelines on the positive duty offer more details and examples of how businesses can be compliant. This ‘guidebook’ from the Australian Institute of Company Directors is also useful for more details on getting your board up to speed.
Key steps for employers
Frame your approach as ‘preventative action’, but ensure you still deal appropriately with harassment or discrimination complaints.
Build these risk mitigation strategies into your business processes:
1. Review your workplace culture and how workers, management and senior leaders behave. Does your culture ignore covert sexual harassment, such as sexist remarks or crude language? (Check out page 5 of this Safe Work Australia Guide to preventing workplace sexual harassment for what that might look like). Do people feel it’s safe to raise those and other sexual harassment complaints with their manager, your HR or leadership team? Find out with an anonymous survey
2. Revisit your policies each year to check they’re compliant. Importantly, how are they followed, are they effective and what needs improvement? Do they address your risks?
3. Run regular and customised training tIn-person, rather than online training, is more effective because trainers can better gauge learner engagement and understanding
4. Roll out control measures to deal with harassment and discrimination risks: Match your control measures to your business, the situation and workers involved
5. Examine the effectiveness of your control measures: Find out how via the resources on the Respect@Work website.
It’s worth mentioning that behaviours such as sexual assault, indecent exposure, or threatening or obscene communications (phone calls, emails, letters, texts, or social media posts) could be criminal offences. You should manage those complaints and behaviours under workplace health and safety laws and refer them to the police, says Safe Work Australia
Sexual harassment and insurance
To boost your risk management approach, consider investing in the right type of insurance policy. Typically, your options include management liability, that includes cover for employment practices liability. Draw on our risk management expertise to help review your coverage to ensure it’s the best fit for your current circumstances. Policy terms and conditions can change.
Useful links
Respect@Work website
https://www.respectatwork.gov.au/
Fair Work Ombudsman: Sexual harassment in the workplace
https://www.fairwork.gov.au/employment-conditions/bullying-sexual-harassment-and-discrimination-at-work/sexual-harassment-in-the-workplace
Safe Work Australia: Preventing workplace sexual harassment: national guidance material (published 2021, but has some good insights)
https://www.safeworkaustralia.gov.au/sites/default/files/2021-03/Guide%20for%20preventing%20workplace%20sexual%20harassment%20-%20for%20publishing.pdf