News & Insights

There’s a renewed drive to stamp out sexual assault and harassment in Australian workplaces, putting employers and employees on notice that such behaviour will not be tolerated.

here’s what is happening right now

• Release by Safe Work Australia (SWA) of new national guidance on preventing and responding to workplace sexual harassment.
• Release by SWA of new national guidance on preventing workplace violence and aggression.
• Independent inquiry into the culture of Commonwealth parliamentary workplaces in response to recent allegations including rape in a minister’s office.
• New Victorian Government ministerial taskforce on workplace sexual harassment created.
  
  the key initiatives of the task force include:

• • • Likely amendment of legislation to introduce mandatory incident notification scheme to notify WorkSafe of workplace sexual harassment;
    • Amendments foreshadowed to create new specific duties under the Occupational Health and Safety Act;
    • Possible Memorandum of Understanding between WorkSafe and the Victorian Equal Opportunity and Human Rights Commission to unify an approach to sexual harassment.
• SWA continuing to increase investigation and enforcement resourcing for a focus on psychosocial hazards, really a buzz word for bullying and harassment.

Sadly, all of these have been long in the making and given what has been revealed by the Australian Human Rights Commission in its “Respect@Work: Sexual Harassment National Inquiry Report (2020) (Report)” are much needed areas for balanced reform.

What do I mean? Well the Report found that, despite workplace sexual harassment being unlawful under various Federal and State discrimination laws, it remains “prevalent and pervasive”. That means there is a need to take a tougher stance on eliminating and minimising this behaviour in the workplace.

It is just a matter of time before a workplace in Australia takes the dubious honour of being the first employer prosecuted for failing to eliminate or minimise such risks as reasonably practical in accordance with most work health and safety legislative regimes across the country.

This is the moment for employers to step up and confront this problem head on and in doing so, help not only the thousands of women and men, (yes it’s not just a “woman issue” in our workplaces) but to also help themselves avoid the legal, reputational and financial risks that allowing such behaviour to exist brings with it.

a quick note about me and why I am concerned

I’m a father of two beautiful seriously clever young girls who are my whole world.

I was raised to respect people. I am however human and not perfect, just like everyone else.

I want my girls to enter the workforce and to be as safe as reasonably practicable. I don’t expect to see them wrapped in cotton wool. The world does not work that way.

We need a balanced and carefully considered system with appropriate processes (checks and balances) to protect those confronted by sexual harassment or bullying as well as those on the receiving end of such complaints.

Given that women are more likely to be impacted, we must remember that every woman in the workforce is somebody’s daughter, sister, wife, mother and a human being entitled to be treated with dignity and respect.

We should all want this, right?

immediate actions

Employers, this is your call to arms. It is imperative that you:

• Ensure all workers (employees and contractors) are aware of and understand the policies that you should have in place, their obligations and rights in respect of sexual harassment.
• Key amongst this should be a focus on communicating what ought to be common sense, the notion of respecting boundaries and really understanding consent. If you need a crash course you should see Emmeline May and Blue Seat Studio’s very clever YouTube production on Tea Consent, it’s only 2 minutes and 51 seconds of your life and it’s brilliant (N.B. some content may offend).

• If you do not have or have not reviewed, in the last six months, your Work Health and Safety Management System and respective constituent policies, including your reporting, investigation and handling practices and procedures then stop and go and do it, go on get going, yes now, you can thank me later.
• Train your people often and regularly, take attendance and test them to demonstrate they took away the key points and put that test on your people’s personnel file. You will thank me later when you are responding to your first sexual harassment claim or the WHS inspectorate comes calling because by doing this you will achieve two things:
  • One you will have created a defensible position to show you have acted reasonably and practically; and
  • You will, just perhaps, have signalled to your workplace what is acceptable and what is not and what your real values are.

Quite separately, if your workplace and its leadership are serious about addressing this issue, they need to know that ally is a verb, look it up.

workplace health and safety

While the SWA Guide characterises sexual harassment as a workplace hazard, if you didn’t already know, health is defined in the modernised legislative regime as including psychological well-being.

Short point, risks to health and safety can be either physical or psychological in origin.

Persons conducting a business or undertaking (PCBUs) have a duty to eliminate or minimise such risks so far as is reasonably practicable.

The Guide sets out a useful summary on how to take a risk management approach to managing such.

• Identify and asses.
• Implement control measures
• Review the effectiveness of controls
• Rinse and repeat regularly

That said, without real leadership from the top down, no system can ever be effective.

workplaces are no longer how Dickens or George Orwell described them

We need to think critically about what we understand the “workplace” to be.

It is typically in a WHS context defined to mean a place where work is carried out, including any place where a worker goes, or is likely to be, while at work.

Straight away when we consider the enormous impact of technology, we can see that:

• Remote workers, including those working from home, need to be considered as at risk;
• Work-related activities such as training, team building, conferences or work-related social activities pose risks;
• Our increased use of email and online activities, which can sometimes embolden conduct that would never occur face to face, have to be factored in and with technology comes the means by which to develop clever software solutions to reduce such risk (imagine a program that prevents emails with inappropriate content being communicated over your information and communication network).

This list is not exhaustive and there are many other key cultural aspects that we all know need to be assessed and considered.

conclusion

Familiarise yourself with the Guide and adopt it or practices and procedures that are equivalent or better than those identified and that way you will be entirely unlikely to ever need to find my email address or telephone number.

consider starting with these four steps:

• Assess your workplace culture, perhaps by conducting confidential anonymous surveys;
• Assess and review your systems of work and practices to identify points of likely exposure (after-hours work, minimal supervision, work in isolated locations, or frequency of contact with customers and clients etc, lack of training, systemic structural issues in the workplace);
• Treat this seriously, act on complaints but ensure the process is fair all round;
• Do not make excuses for bad behaviour.

If you need tailored and commercially focused advice to meet your business needs in this area, please contact our employment safety and migration team.

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.