Use this wording with your Board, and with your Risk, WHS and Sustainability committees
1 Core obligations
Under the Sex Discrimination Act 1984 (Cth):
- it is unlawful to subject another person to sexual harassment, harassment on the ground of sex and workplace environments that are hostile on the ground of sex (‘sexual harassment and related inappropriate conduct’). The Fair Work Commission can make ‘stop sexual harassment’ orders and/or deal with a sexual harassment dispute on application. Court applications can be made where the dispute is not resolved by the Commission. Vicarious and accessorial liability provisions apply under the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth).
- Organisations1 have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment and related inappropriate conduct. From 12 December 2023, the Australian Human Rights Commission will have expanded powers to enforce the positive duty and to investigate systemic unlawful conduct. Board members are responsible for setting the Organisation’s strategy for prevention and overseeing the execution and impact of that strategy.
Organisations also have a duty under work health and safety laws to eliminate or minimise psychosocial risks, so far as reasonably practicable, such as risk associated with sexual harassment and related inappropriate conduct. Work health and safety laws are enforceable by work health and safety regulators. Board members must exercise due diligence to ensure their Organisation complies with its work health and safety duties.
2 What to focus on
The focus should be on building and maintaining a respectful and safe culture where people flourish and can be at their best at work so that sexual harassment and related inappropriate conduct is prevented and legal obligations are satisfied. Practically, building a culture of prevention involves:
Good leadership and governance
Ensuring that the systems and norms of the Organisation and culture enable prevention by:
- Having data-informed strategies for prevention, where the data is sound and has the capacity to identify areas for attention and areas where there are positive learnings from which others can learn.
- Resourcing Organisational structures that are best set up to prevent sexual harassment and related inappropriate conduct. This may involve coordination and collaboration between Human Resources, Work Health and Safety, Business Integrity and Legal teams to identify systemic issues that require rectification and learn from the experience of those impacted by harmful behaviours. Some Organisations are setting up specialist units with multiple skill sets.
- Considering how people within the Organisation will best engage with building a culture of prevention. Insights from research undertaken by the Champions of Change Coalition is that it works best when you tap into the Organisation’s DNA. For example, where there is a strong safety culture, sexual harassment and related inappropriate conduct could be framed as psychosocial risks that undermine and threaten that culture and safety.
- Educating and holding accountable middle management who work with front line workers so they can role-model behaviours and be a trusted source of information if concerns arise.
- Having gender diversity in leadership, including at the board. More extensive reporting by public and private sector entities will be required to the Workplace Gender Equality Agency on gender quality indicators and the prevalence of sexual harassment following recent changes to the Workplace Gender Equality Act 2012.
- Ensuring accountabilities for these behaviour at board and executive level and role model behaviours as board members
The AICD recommends that directors discharge their responsibility for addressing and preventing sexual harassment by providing opportunities to deepen the understanding of this conduct and its drivers, role modelling appropriate behaviour, recruiting the right leaders and holding them to account and encouraging reporting.
Applying a work health and safety lens
Manage psychosocial risks in accordance with the work health and safety risk management principles. The Champions of Change Coalition has useful resources on how to address sexual harassment and related inappropriate conduct as a work health and safety issue, and we have provided guidance in the example Risk Register. It involves:
- Acquiring and keeping up-to-date knowledge of issues relating to sexual harassment and related inappropriate conduct, including the drivers and impacts of this conduct
- Gaining an understanding of the nature of the Organisation’s operations and generally of the hazards and risks regarding sexual harassment and related inappropriate conduct in the business.
- Ensuring that the Organisation has available for use, and uses, appropriate resources and processes to eliminate or minimise sexual harassment and related inappropriate conduct risks
- Ensuring that the Organisation has appropriate processes for receiving and considering information regarding incidents of sexual harassment and related inappropriate conduct, and the hazards and risks of this conduct, and responding in a timely way to that information, including from bystanders
- Ensuring that the Organisation has and implements processes for complying with its duties to eliminate or control the risk of sexual harassment and related inappropriate conduct
- Monitoring on an ongoing basis the provision, use and effectiveness of the resources and
- processes referred to above. To monitor control measures effectively, it is essential that the data relied on provides useful insights into your Organisation’s culture, where it is tracking well and the risk areas for attention.
Human-centered and trauma-informed processes and systems
Ensure that the reporting of, and Organisational responses to, sexual harassment and related inappropriate conduct
- prioritise safety, trustworthiness, choice, collaboration and empowerment when interacting with the person affected (this is known as ‘trauma informed care’)
- put the person affected at the centre and seriously take into account their wishes for resolution, which should be accommodated provided it keeps everyone safe (this is known as taking a ‘human-centered approach’).
This also means considering multiple resolution options, regularly communicating with the people involved in the resolution process, providing access to appropriate support and ensuring that the individuals involved in managing incidents are trauma-informed in their approach. See the Champions of Change Coalition’s Disrupting the System Report (page 68) for more information about human-centered systems and approaches.
Balancing confidentiality and transparency to achieve ‘respectful transparency’
Build psychological safety by having greater transparency over the prevalence of sexual harassment and related inappropriate conduct, how the Organisation is dealing with this conduct and how the Organisation is learning from incidents and adapting its approach for prevention of harm.
To achieve respectful transparency, the use of Non Disclosure Agreements (NDAs) and confidentiality clauses in settlement agreements should be carefully considered in accordance with the best practice guidance released by the Respect at Work Council
Confidentiality clauses should not prevent the person affected from telling their story or preclude the Organisation from sharing information in a de-identified way, as this would be detrimental to the wellbeing and recovery of the person affected and the Organisation’s ability to monitor emerging systemic issues and to take action to better prevent the behaviours in the future.
Building psychological safety and trust
Psychological safety and trust are a critical foundation to ensure greater reporting of sexual harassment and related inappropriate conduct. Education and training in bystander skills is essential so upstanders can safely intervene when they witness or are told about harmful behaviour. Taking appropriate and proportionate action when sexual harassment and related inappropriate conduct is found to have occurred is also important in maintaining this trust.
3 Example charter wording
Anti-discrimination and work health and safety legislation requires our directors to exercise due diligence and good governance to ensure that we proactively identify, and take reasonable and proportionate measures to eliminate, the risks of sexual and sex-based harassment occurring in the workplace, and hostile workplace environments, which create the culture for these unlawful behaviours to occur and persist.
[Specify the Board committees responsible for regularly addressing harassing conduct] must regularly address sexual and sex-based harassment, and hostile workplace environments. This involves not only responding to these behaviours when concerns are raised, but also ensuring that we are taking a systematic approach to managing risk with the aim of eliminating the risk or, if this is not possible, minimising the risk as far as is reasonably practicable. Our intention is to prevent the harm caused by these unlawful behaviours.
We build and maintain a culture of prevention through:
- good leadership and governance
- applying a safety lens and building psychological safety and trust
- human-centered and trauma-informed processes
- and greater transparency, including applying the Respect@Work Council’s Best Practice Guidance on confidentiality clauses in settlement agreements.
Committee Charters/Terms of Reference should outline particular obligations drawing on the areas of focus detailed above.
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This document is intended to provide general guidance only. The contents should not be relied upon as legal advice. Specific legal advice should be sought in particular matters.