Workplace sexual harassment is a work health and safety hazard and occurs in every industry. It harms workers, businesses and the broader community. It’s a costly work health and safety hazard – and it’s preventable. Workplace sexual harassment can cost businesses with impacts including lost productivity, absenteeism, reputational damage and can impact staff retention and recruitment. New resources released by SafeWork NSW are a valuable reference point for all business operators nationwide.
What is Sexual Harassment?
Sexual harassment is:
• any unwelcome sexual advance, request for sexual favours or other unwelcome conduct of a sexual nature
• conduct that makes a person feel offended, humiliated or intimidated, where a reasonable person in the same circumstances would anticipate that reaction.
Workplace sexual harassment is costly
Proactive steps to prevent workplace sexual harassment can reduce financial and reputational risks to your business. Workplace sexual harassment can cost businesses with impacts including lost productivity, absenteeism, reputational damage and can impact staff retention and recruitment. The impact of workplace sexual harassment on the Australian economy is significant with a 2018 report from Deloitte estimating the total cost to the economy to be around $3.8 billion.
Workplace sexual harassment is preventable
Understand your work health and safety responsibilities and get practical advice to prevent, manage and respond to sexual harassment in your workplace.
Businesses have a responsibility to proactively prevent workplace sexual harassment. This includes identifying work-related factors that can lead to sexual harassment risks and putting plans in place to control the risks.
Prevent and manage the risk of sexual harassment in your workplace
Build a safer workplace by understanding your WHS responsibilities to prevent and manage sexual harassment in your workplace:
• Understand: Learn more about your work health and safety responsibilities to prevent sexual harassment.
• Prevent: Take steps to address workplace sexual harassment in your workplace.
• Respond: Find out what to do if someone in your workplace reports sexual harassment.
NSW Resources, National Relevance
“The resources produced by SafeWork NSW are a great reference point for businesses across Australia, as the WHS implications of sexual harassment have national consistency”, explains ACAPMAs Elisha Radwanowski.
“Members are reminded that Sexual Harassment is something that they need to be active in preventing, training for and investigating and addressing or they can face not only the adverse business and human impacts, but also extensive penalties”
The duty to prevent Sexual Harassment is a POSITIVE one
From 12 December 2023 all Australian employers and organisations have been required to take active steps to eliminate sexual harassment, sex-based discrimination and victimisation in the workplace. This means that they need to have a system in place to actively seek out both actual and potential breaches, and both remove and prevent them. This positive duty is about more than responding to incidents, it is about taking appropriate measures to eliminate unlawful sexual harassment and sex based discrimination conduct. This change means there are steps all businesses should be taking now. Starting with ensuring managers understand the changes.
This positive duty extends to all organisations in Australia and places a responsibility on those organisations to protect more than just their own workers. The coverage of the positive duty extends beyond just workers to incorporate agents and third parties with whom employees come into contact in connection with their work. This extension places a requirement on organisations to address how workers treat third parties, but also how third parties treat employees in a work context, for example, customers, delivery drivers, and other service workers.
The compliance requriements with this positive duty is administered by the Australian Human Rights Commission, who has highlighted that the expectation around what is reasonable in terms of measures, will vary based on the size, structure and resources of the organisation.
“What the Commission has confirmed is that small businesses particularly, will be expected to implement less formal mechanisms, such as using or adapting free resources and services and regularly communicating its policies and behavioural expectations to all its employees”, explains Elisha.
“Larger businesses will be expected to put into place more comprehensive and formal systems. What is clear is that all organisations will be required to take proactive and meaningful steps to prevent workplace sexual harassment, discrimination and victimisation, and that training that is appropriate to the size of the business will be critical to this”, continued Elisha.
7 Standards of the Sex Discrimination Act Positive Duty
To effectively satisfy the positive duty under the Sex Discrimination Act, the Commission has set out seven key standards;
1. Leadership
Senior leaders must understand their legal obligation under the Sex Discrimination Act, including the specificities of unlawful conduct. Their responsibility is to ensure that proactive and responsive measures are developed, reviewed, and clearly communicated to workers. Furthermore, leaders should exemplify respectful behaviour and be committed to furthering inclusion and gender equality in the workplace.
2. Culture
Organisations should foster a safe, respectful, and inclusive workplace culture. This environment should inspire confidence in workers, motivating them to report instances of misconduct, knowing that the system will prioritise their well-being and address any issues.
3. Knowledge
Organisations must establish a comprehensive policy on respectful behaviour and the repercussions of misconduct. This framework should provide workers with clarity on behavioural expectations, mechanisms to detect inappropriate actions, and a thorough understanding of their rights and responsibilities within the workspace. Bystander training may be an appropriate strategy for workplace safety and harassment prevention.
4. Risk management
Organisations must be proactive in identifying and assessing potential risks associated with misconduct, taking into account both equality and the well-being of their workforce. Collaboration with stakeholders on identifying these risks is essential. Strategies should be developed to respond to and, more importantly, prevent these risks.
5. Support
Offering robust support systems is non-negotiable. Workers who witness or undergo misconduct should have immediate access to resources and assistance. This support should remain accessible regardless of whether the incident has been formally reported.
6. Reporting and response
Clear channels for reporting misconduct should be readily available to workers. Regular communication about these pathways is essential. Responses to reports should be swift, consistent, and prioritised to minimise harm to those involved.
The Australian Human Rights Commission encourages organisations to implement anonymous reporting platforms to satisfy the positive duty. Anonymous reporting platforms assist in the early detection of workplace issues and offer secure channels for reporting misconduct.
7. Monitoring, evaluation and transparency
Consistent data collection on workplace misconduct is crucial. Organisations should harness this data to refine their work culture and bolster preventive measures. An open dialogue about the nature, extent, and subsequent actions related to reported behaviours ensures a transparent and accountable workplace environment.
The seven standards are interconnected, meaning actions addressing one might also cater to others. Every organisation and business should adhere to the seven standards, but the application will vary depending on what’s reasonable for each entity. While all entities, even those without employees, are expected to comply, only applicable aspects of the standards will concern those without workers. The Commission will evaluate compliance comprehensively, emphasising that organisations should meet all standards to eliminate discrimination, sexual harassment and other forms of unlawful behaviour in the workplace.
As ACAPMAg has previously reported there is a need to train staff on what is appropriate with 30% of admitted offenders stating that they thought their conduct was acceptable and that their victims ‘wanted it’ (see; https://acapmag.com.au/2024/05/30-of-admitted-workplace-sexual-harassment-offenders-thought-victim-was-ok-with-it/)
“The positive duty on businesses to actively prevent sexual discrimination and harassment means that every business needs to take the learnings from this report onboard “, continued Elisha.
For more on the positive duty to prevent sexual discrimination and harassment – https://acapmag.com.au/2024/03/safety-regulator-warns-positive-sexual-harassment-duties-need-multiple-reporting-points/
Train all managers and frontline staff now
The safety regulators have also cautioned businesses to ensure that they are actively training all managers in their responsibilities under the new positive duties to ensure that the business and the managers, are supporting compliant operations.
The ACAPMA Fuel Convenience Compliance (FCC) Level 2 Course for Onsite Managers encompasses a detailed review of all managers employment and safety duties, including the positive duty to prevent sexual discrimination and harassment.
Frontline staff should also be trained in what is expected of them. The FCC Level 1 for Frontline Staff includes a detailed review of bullying, harassment and discrimination behaviours that are inappropriate.
For more information on the ACAPMA FCC courses see; https://acapma.com.au/our-services/training/fuel-convenience-retail-training-solutions/
Workplace Sexual Harassment Resources
Here to Help
ACAPMA members are reminded that ACAPMA has a series of resources from Quick Reference Guides to template letters and investigation and reporting checklists that can assist with ensuring compliant and consistent responses in this area, and can call on the advice and support of the ACAPMA Employment Professionals via employment@acapma.com.au .
HR Highlights are things to consider, implement and watch out for in your business.
They are provided as general advice and you should seek further advice on your situation by emailing employment@acapma.com.au it’s free for members.
ACAPMA Membership is affordable at only $860 per year for a single site and valuable with sites gaining HR advice support and representation as well as a raft of other benefits and discounts. Click here to learn more about ACAPMA Membership.
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