1 Core obligations

Boards have a duty to eliminate, or minimise so far as is reasonably practicable, the risks of sexual harassment in the workplace under the Sex Discrimination Act and the Fair Work Act.1

2 What to focus on

Board members should consider asking for regular reporting such as the measures listed below and in our example Reporting dashboards, which can be downloaded from the ‘Policy, processes and reporting’ section of the Respect Toolkit.

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

Board reporting

1 Core obligations

Under the Sex Discrimination Act 1984 (Cth), Organisations1 have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, 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’). 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. Board members must exercise due diligence to ensure their Organisation complies with its work health and safety duties.2 

2 What to focus on

Board members need to ensure that their strategy for, and governance of, a culture of prevention is data-informed. Board members should require regular reporting from the Executive with a focus on systemic issues and leading indicators.

Data reported to the Board is only as good as the quality of the questions asked. To systemically prevent sexual harassment and related inappropriate conduct, the following questions are important:

  • Do we have a data-informed strategy to create and maintain a safe and respectful culture that prevents sexual harassment and related inappropriate conduct?   Is it good data? Does the data give us insights into our culture, where we are going well and risk areas for attention?
  • How will we monitor the execution and impact of our strategy? What metrics and tools do we have to measure success? 
  • How will we talk about our strategy now?
  • Have we identified and prioritised the changes which will have the greatest impact? Is our timeline reasonable and achievable? What will accelerate us? What will slow us down?
  • Is our Organisation structured, and our people equipped and supported, to respond to harmful behaviours in a holistic and integrated way?  
  • Do our systems and processes clearly set out expectations and accountabilities and capture systemic issues so they can be rectified?  Are we confident those processes do not exacerbate harm or trauma to all involved?  
  • Do we have a foundation of updated policies, training, education and understanding of our legal obligations?  
  • Do we have psychological safety in reporting concerns?  
  • Do we have multiple avenues to raise concerns and have an anonymous reporting option? 
  • Do our people know where and how to raise concerns? Do we have options for resolution that are human-centered and do not automatically default to investigations? If not, what needs to change? 
  • Do our people understand and feel safe in their execution of their responsibilities as bystanders/upstanders? 
  • What is our approach to transparency?  What is our approach to the use of confidentiality clauses in settlement agreements?  Are we following the Best Practice Guidance issued by the Respect@Work Council?
  • What are our stories to share in de-identified ways to bring the humanity to this issue and engage our people in its importance?  What have we learned to inform our approach to prevention in the future?
  • How do we respond to historical matters?  

Example reporting measures are listed below and   in our example Reporting dashboards, which can be downloaded from the ‘Policy, processes and reporting’ section of the Respect Toolkit.’ These issues should be allocated to the appropriate committee, such as People & Culture or Audit & Risk.

Prevention: Measuring and monitoring 
  • Training on sexual harassment and related inappropriate conduct: frequency and results (if assessed), mandatory training completion rates, what happens if training not completed
  • Workforce demographics: diversity targets, strategy for meeting targets and progress against  targets, diversity information per seniority level
  • CEO/leadership statements: frequency and effectiveness with which leaders articulate the importance of gender equality and eradication of sexual harassment, set targets and report
  • Understand the new requirements from Workplace Gender Equality Agency (WGEA), including mandatory reporting on sexual harassment, harassment on the ground of sex and discrimination from 2024
 Handling concerns
  • Number and nature of concerns: seniority and business/work unit of employees involved, direct complaint, observed and raised by others, anonymous or whistleblower, form of resolution process – did it include an internal or external investigation? concern substantiated or not, form of resolution, days to resolution
  • Outcomes for complainants, witnesses and bystanders: tenure in Organisation/career progression, are there any separation pay outs or NDAs.  What does the NDA cover?
  • What did we learn?  How will these learnings inform our future approach to prevention?
Safe and respectful culture: Monitoring 
  • Survey feedback: staff responses to culture questions in engagement surveys and/or regular pulse checks (to understand employee sentiment and whether people feel safe to raise concerns)
  • Exit feedback: does it suggest areas of the business are higher risk? Is there scope for confidential or anonymous feedback?
  • Turnover: by gender, voluntary and non-voluntary
  • Remuneration strategy: link to culture (i.e. commissions and incentives linked to behaviours, not just financial strategies)
  • Outcome of WHS risk reviews: are the risks of sexual harassment and related inappropriate conduct included in standard risk assessments (for example is there supervision/leadership when alcohol is provided at events, are safety walkarounds conducted from a female perspective)?
  • Internal audit: is an internal audit function required to assess effectiveness of various processes outlined above, including the accuracy of information provided to the Board?

Consider the Respect@Work Council’s Good Practice Indicators Framework for Preventing and  Responding to Workplace Sexual Harassment () , which suggests how Organisations can measure their performance against the following key areas for action:

  • Leadership
  • Knowledge
  • Culture
  • Risk assessment and transparency
  • Support
  • Reporting
  • Measurement

We have developed example dashboards to assist you in developing Board reports.

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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.

1 An employer or a ‘person conducting a business or undertaking’. A person conducts a business or undertaking whether the person conducts the business or undertaking alone or with others, and whether or not the business or undertaking is conducted for profit or gain.  2 See Safe Work Australia’s National Guidance Material, “Preventing Workplaces Sexual Harassment” at pages 8-9

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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.