1. PURPOSE

This paper provides a report for the Board on initiatives to prevent and address sexual harassment and recommendations for endorsement by the Board.     

Recent research, Equality Across the Board, conducted by the Australian Human Rights Commission (AHRC) and commissioned by the Australian Council of Superannuation Investors (ACSI) makes a compelling case that boards and executive management play a critical role in preventing and responding to sexual harassment. 

2. EXECUTIVE SUMMARY

Sexual harassment is unlawful and also a workplace health and safety risk that causes offence, humiliation or intimidation, and can have long-term psychological, physical and financial consequences for affected individuals.  

This is a non-financial risk to workplace health and safety, reputation and [Company’s] employee and customer attraction and retention. [Company] has a positive duty to put in place measures to ensure safety at work. This duty extends to the Board having a duty to eliminate and minimise so far as is reasonably practicable, the risks of sexual harassment in the workplace. If any instance of sexual harassment should occur, it is incumbent on the Board to ensure that [Company] responds appropriately. 

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This template is provided for you to customise for your organisation.

In addition to this template, the Champions of Change Coalition has included a reporting framework in ‘Disrupting the system: Preventing and responding to sexual harassment in the workplace’, pages 98-99.

Board report template

[X:X] Sexual Harassment

FROM

DATE

TO

CC

1. PURPOSE

This paper provides a report for the Board on initiatives to prevent and address sexual harassment and recommendations for endorsement by the Board.     

Recent research, Equality Across the Board, conducted by the Australian Human Rights Commission (AHRC) and commissioned by the Australian Council of Superannuation Investors (ACSI) makes a compelling case that boards and executive management play a critical role in preventing and responding to sexual harassment.1 

 
2. EXECUTIVE SUMMARY

Sexual harassment is unlawful and also a workplace health and safety risk that causes offence, humiliation or intimidation, and can have long-term psychological, physical and financial consequences for affected individuals.2  

This is a risk to workplace health and safety, reputation and [Company’s] employee and customer attraction and retention. [Company] has a positive duty to put in place measures to ensure safety at work. This duty extends to the Board having a duty to eliminate and minimise so far as is reasonably practicable, the risks of sexual harassment in the workplace. If any instance of sexual harassment should occur, it is incumbent on the Board to ensure that [Company] responds appropriately. 

There are numerous recent examples of organisations suffering significant reputational and culture damage due to poor handling of sexual harassment complaints and not having appropriate policies and approaches.

Recommendations are made for review of policies and processes for managing work health and safety risks associated with workplace sexual harassment and for a program of communications from the CEO and other leaders to set the ‘tone from the top’ making it clear that [Company] has zero tolerance for sexual harassment.

It is also recommended that reporting on various measures relating to sexual harassment be provided to the [Risk] Committee on a quarterly basis.

A draft resolution relating to these recommendations is included in this paper for approval by the Board.

 
3. OVERVIEW: RELEVANT LEGISLATION

The Sex Discrimination Act makes sexual harassment unlawful in certain areas of public life, including employment.3

Under the Sex Discrimination Act 1984 (Cth), sexual harassment is:

  • Any unwelcome sexual advance
  • Unwelcome request for sexual favours 
  • Other unwelcome conduct of a sexual nature in relation to the person harassed

in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.4

As an employer [Company] is vicariously liable for acts of sexual harassment committed by employees or agents in connection with their duties unless all reasonable steps were taken to prevent harassment occurring.  Further, as of 11 November 2021 eligible workers who believe that they have been sexually harassed at work can make an application to the Fair Work Commission under the Fair Work Act for an order that the sexual harassment stop. These are in addition to our duties under work health and safety laws to manage the risks to our people of sexual harassment. If the sexual harassment amounts to sexual assault there are also significant criminal law implications.

4. OVERVIEW: ADDRESSING SEXUAL HARASSMENT RISK

Sexual harassment in the workplace causes immediate and long-term harm to individuals and organisations. Individuals can suffer psychological, physical and employment harms. Organisations face reputational and financial repercussions if they fail to create a respectful and safe workplace culture. 

Instances of sexual harassment are often viewed as individual grievances arising from specific situations when, in reality, they likely reflect a systemic organisational problem and should be viewed as seriously as other sources of workplace harm.5 

Appropriate systems and processes for managing work health and safety risks should be used to eliminate the risk or, where elimination is not possible, control the likelihood and impact of risks associated with workplace sexual harassment. Should an incident occur, ability to demonstrate empathy and support for the affected individual and timely and sensitive communication is critical.  

All organisations should:

  • Have a policy relating to sexual harassment to demonstrate that the organisation has a system in place to address sexual harassment
  • Reference sexual harassment as a work health and safety issue in relevant organisational charters and communications
  • Provide information to officers about their work health and safety obligations (in training or separately in other communications with them) to satisfy due diligence obligations regarding sexual harassment
  • Take steps to identify and mitigate risks relating to sexual harassment in the workplace including assessing their workplaces for particular characteristics that may increase the risk of sexual harassment occurring or which may create barriers for identification and reporting
  • Ensure that there is strong leadership and role modelling in the way in which they respond to incidents of sexual harassment and encourage bystander reporting
  • Have regular reporting to Board level regarding the organisation’s strategy for prevention of sexual harassment, handling of complaints or incidents and outcomes and ensuring that there is a safe culture so that the Board can monitor the effectiveness of the strategy on an ongoing basis and drive any necessary change

5. RECOMMENDATIONS

It is proposed that:

  • A review be undertaken of [Company’s] policies and processes having regard to leading practice6 and relevant peer policies and processes for:
    • Identifying and preventing, or mitigating risk of, sexual harassment
    • Ensuring that there is an appropriate response to any instance of sexual harassment for the individuals concerned.
    • Reviewing with a view to assess the feasibility of implementing the eight recommendations of the AHRC and ACSI Equality Across the Board report.
  • Recommendations be submitted to the Board by [insert person/people/Board Committee to be responsible] for approval by the Board regarding:
    • Any proposed amendment of [the Company Code of Conduct / Board Committee Charter / other named policy] 
    • Board reporting practices 
    • Any other changes to [Company’s] strategy for managing sexual harassment risk
  • A review be undertaken of [Company’s] broader strategy, current actions and gaps with respect to sexual harassment with the findings and recommendations to be reported back to the board by no later than [date].
  • Following the implementation of any recommendations of this review that the topic of sexual harassment be a board agenda item at least annually and more frequently if required. 
 

6. DRAFT RESOLUTION

The Board endorses the recommendations made in [name of Board Paper as per Agenda] and agrees to review the further recommendations to be submitted by [insert person / people / Board Committee to be responsible] at [insert as relevant e.g., its next meeting / date].
 
 

Name:

Date:

 
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.

1 Australian Human Rights Commission, ‘Equality across the board: Investing in workplaces that work for everyone (2021)’

2 See Safe Work Australia’s National Guidance Material, “Preventing Workplace Sexual Harassment” at page 4

3 Sex Discrimination Act 1984 (Cth) pt II div 3

4 Sex Discrimination Act 1984 (Cth) s 28A

5 See “Disrupting the System, Preventing and responding to sexual harassment in the workplace” Champions of Change Coalition

6 See examples and guidance provided at https://cew.org.au/

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We need to set the tone and lead from the top. With this in mind, here are examples of some things we should never say or accept from others:

  • A bullying and harassment policy should be enough to deal with sexual harassment and related inappropriate conduct.
  • We have low report rates of sexual harassment and related inappropriate conduct, so it’s not a problem at this organisation.
  • We have a reporting hotline which is well publicised, but we don’t get many calls about sexual harassment or related inappropriate conduct, so it’s not an issue here.
  • I have been in this industry for decades and I have never seen it, so it mustn’t be happening.
  • That’s the remit of our HR team. If there were ever a big issue, they would escalate it to us.
  • Our staff engagement scores are terrific and there is no indication of there being a sexual harassment problem here. That means we’re doing enough.
 
Most cultural issues aren’t hiding in plain sight. Often, it’s the things that aren’t being talked about that we need to be concerned about. Research tells us that sexual harassment is common and that it’s significantly under reported. In fact, increased reporting can indicate greater psychological safety and a culture of trust that the organisation takes sexual harassment seriously. We have a positive duty to prevent sexual harassment and related inappropriate conduct, and to continuously assess and evaluate whether we are meeting the requirements of the duty. 
 

We need to ensure our people feel safe to come forward and report instances of sexual harassment or related inappropriate conduct in the workplace. The only way they’ll do this is if they can see that leadership takes this issue seriously.

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We take the health and wellbeing of our people very seriously. We work hard to improve our safety outcomes and reduce injuries, and overall we do a good job of preventing physical harm to our people.

As we have seen in many other organisations, sexual harassment is more prevalent than a lot of people think. This represents a real risk to keeping people safe in the workplace, and to our people’s wellbeing and productivity.

It can also cause significant damage to our reputation, our brand as an employer of choice, lost business, and to our corporate standing. If we fail to take steps to address this conduct, we may be subject to enforcement action and/or civil penalties. Our organisation may also be held liable for inappropriate conduct committed by our employees unless we took all reasonable steps to prevent the conduct occurring. 

We need to make it crystal clear to everyone in the organisation that we have zero tolerance for any form of sexual harassment. We will always take appropriate action when sexual harassment or related inappropriate conduct occurs. We seek to prevent these unlawful behaviours and to have a zero-harm workplace. We welcome the new Australian positive duty placed on organisations by the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 and commit to implementing its provisions in a timely fashion and demonstrating our leadership. 

We need to treat sexual harassment and related inappropriate conduct risks as we would any other physical or psychological risk in the workplace. We already have existing systems and processes in place for identifying and mitigating workplace health and safety risks and hazards, and for defining our desired safe and respectful culture. 

We need to embed these sexual harassment response frameworks into our existing risk reporting practices and organisational culture, so all forms of sexual harassment and related misconduct are eradicated.

We can’t afford to wait on this; we need to act urgently. 

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Sexual harassment is any unwelcome sexual advance, request for sexual favours or other conduct of a sexual nature. It’s not only a human rights issue, which is unlawful under the Sex Discrimination Act, but also a workplace health and safety (WHS) risk which can cause significant psychological, physical, reputational and financial harm.

Existing systems and processes for managing WHS risks and hazards should be used to eliminate the risks and control the likelihood of sexual harassment occurring in the workplace.

Board members and senior executives have a duty to address this. Everyone deserves to work in a safe, respectful and inclusive environment. Respect is everyone’s business.

Sexual harassment is any unwelcome sexual advance, request for sexual favours or other conduct of a sexual nature. It’s not only a human rights issue, which is unlawful under the Sex Discrimination Act, but also a workplace health and safety (WHS) risk which can cause significant psychological, physical, reputational and financial harm.

Existing systems and processes for managing WHS risks and hazards should be used to eliminate the risks and control the likelihood of sexual harassment occurring in the workplace.

Board members and senior executives have a duty to address this. Everyone deserves to work in a safe, respectful and inclusive environment. Respect is everyone’s business.