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
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.
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].
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.