Starting the important conversations
The first step in preventing sexual harassment in the workplace is starting the conversation.
It’s at this point that you could face pushback or struggle to get your executives or board to give the issue the attention it deserves. Alternatively, with recent media and government attention on the issue, you may receive interest from leaders who are keen to understand how they can help – sometimes for the first time.
Firstly, it’s not about debating the ‘what’. All leaders and board members should understand what constitutes sexual harassment, their responsibilities and why it’s important that those in power are the driving force behind these conversations.
Instead the conversation needs to focus on the ‘how’ – how to take meaningful action as board members and executive leaders.
CEW has built a toolkit to help in preparation for these important conversations.
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Starting the important conversations
The first step in preventing sexual harassment in the workplace is starting the conversation to build and maintain a culture of prevention. This conversation has never been more critical.
Since 13 December 2022, organisations have a positive duty under the Sex Discrimination Act 1984 (Cth) to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment and related inappropriate conduct. This is in addition to existing work health and safety laws in most States and Territories requiring organisations to minimise psychosocial risks, including sexual harassment.
The new law is a game changer. The positive duty compels organisations to reform their culture, transitioning from ‘zero tolerance’ (a reactive, complaints-based approach’) to ‘zero harm’ (proactively taking steps to prevent sexual harassment and related inappropriate conduct). Organisations also need to continuously assess and evaluate whether they have achieved this aim.
From 12 December 2023, the Australian Human Rights Commission will have increased powers to enforce the positive duty. Further guidance from the Australian Human Rights Commission on the positive duty is expected to be published in mid-2023.
These changes should be in sharp focus with your boards and leadership teams. The new legislation gives you the opportunity to revisit the conversation about building and maintaining a respectful and safe culture where people can flourish at work.
This is not about debating the ‘what’. All leaders and board members should understand what constitutes sexual harassment or related inappropriate conduct, their responsibilities, and why it’s important that those in power are the driving force behind building and maintaining a culture of prevention. They should also be aware of the new legislation and the introduction of the positive duty.
Instead, the conversation needs to focus on the ‘how’ – how to take meaningful action as board members and executive leaders, and how to ensure your organisation complies with the positive duty to prevent sexual harassment and related inappropriate conduct.
CEW has built a toolkit to help in preparation for these important conversations.
What’s the motivation?
Think about your organisation and industry, or a particular leader, to identify the best potential motivator for taking action. For some, it’s profit and profitability. For others, it’s their reputation with customers. For certain organisations, it will be about being seen as an employer of choice, whereas for others it will be driven from a health and safety or legal compliance standpoint.
Importantly, organisations have been under an obligation to comply with the new Australian positive duty to prevent sexual harassment and related inappropriate conduct since 13 December 2022. This has provided a timely and compelling motivation for change. Whatever the motivation is, all leaders must create safe workplaces where everyone can bring their whole selves to work.
An example conversation script to help you get started
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If your board and senior management team are on board at this stage, next you need to demonstrate the role they play as visible and influential voices in the workplace.
This is about demonstrating a dedication to the cause from the top down.
Download our resource pack
Respect is Everyone’s Business is about equipping everyone, especially leaders with influence, with the tools to create safe and respectful workplaces.
We encourage all leaders to use and share these resources in their spheres of influence and help eliminate and prevent sexual harassment in their workplace even before it happens.
Quick facts, stats and conversation starters
Sometimes you need some compelling statistics or facts to bolster your argument and get others to sit up and listen.
We have listed a few facts and statistics that you can include in your initial conversations with other executives and board members.
Sources: Sexual harassment demographic statistics: The Australian Human Rights Commission’s fifth national survey on sexual harassment in Australian workplaces (2022). Economic impacts: Deloitte Access Economics (March, 2019).
Spread the word
Hold your board and your leadership team to account by sharing your intentions with your employees and relevant stakeholders. This email template is designed to help you clearly articulate your commitment as a leader to eradicate sexual harassment by adding your own voice to the example provided. It is built on a recent message sent by a CEW member and experienced Chair.
Spread the word
Hold your board and leadership team to account by sharing your intentions with your employees and relevant stakeholders. This email template is designed to help you alert your organisation to the new legal obligations. It also clearly articulates your commitment as a leader to eliminate sexual harassment from your workplace. Please feel free to customise and add your own voice to the example below.
Spread the word
Hold your board and leadership team to account by sharing your intentions with your employees and relevant stakeholders. This email template is designed to help you clearly articulate your commitment as a leader to eradicate sexual harassment by adding your own voice to the example provided. It is based on a recent message sent by a CEW member and experienced Chair.
Managing pushback
In order to have effective conversations about sexual harassment with employees, leaders and board members, you need to be prepared to respond to any pushback.
It’s not uncommon for some of the responses you receive when raising the issue of sexual harassment at work to surprise or exasperate you. Often it’s only after the pushback has occurred that you think of a compelling response and wish you’d said something earlier.
In order to avoid pushback derailing the conversation, or causing the issue to fall off the table entirely, you can arm yourself with some responses.
Prepare your Q&As
When talking about sexual harassment in the workplace, you may face some challenging questions from employees or other important stakeholders. Here are some common questions and a framework for responses.
Potential follow up questions:
What policies are in place to prevent and address workplace sexual harassment?
Are these regularly reviewed by the board as part of the governance calendar?
- The safety and wellbeing of our employees is our highest priority. We are committed to providing a safe and respectful culture for all employees.
- We have a zero-tolerance approach to sexual harassment and inappropriate related conduct.
- We will always take appropriate action depending on the circumstances.
- We are committed to taking proactive steps to prevent these unlawful behaviours, so our people are not harmed.
- Harassment of any kind is considered serious misconduct and may be grounds for dismissal.
- We have a comprehensive list of policies in place, including: [List your relevant Codes of Conduct, reporting protocols, whistle-blower policies, support frameworks (including EAP) and other relevant measures]. Each of these policies have been or are being reviewed and updated to reflect the new federal positive duty to prevent sexual harassment and related inappropriate conduct.
- Regular reports on all aspects of workplace safety, including sexual harassment and related inappropriate conduct, are provided to [the board, audit and risk committee/other committees].
- Serious matters are elevated to the board immediately.
These new laws amend the Sex Discrimination Act 1984. The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 introduces a new federal positive duty on organisations to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment and related inappropriate conduct. It will shift the burden from individuals having to make complaints to one where employers must continuously assess whether they are meeting the requirements of the duty to take proactive and preventative action.
Directors need to understand these changes and that from 12 December 2023, the Australian Human Rights Commission will have increased powers to enforce the positive duty.
The new federal positive duty to prevent sexual harassment and related inappropriate conduct came into effect on 13 December 2022.
From 12 December 2023, the Australian Human Rights Commission will also have increased powers to enforce the positive duty. These will include options to:
- Conduct inquiries into our compliance with the positive duty if it reasonably suspects that we are not complying with that duty, and provide recommendations to achieve compliance
- Give a compliance notice specifying the action that we must take, or refrain from taking, to address our non-compliance
- Apply to the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) for an order to direct compliance with the compliance notice, and
- Enter into enforceable undertakings if we were to remain non-compliant and enforce those undertakings in the Federal Courts if necessary.
The new federal positive duty to prevent sexual harassment and related inappropriate conduct will apply to all organisations, with no exclusions. However, what measures are considered ‘reasonable and proportionate’ by an organisation will vary depending on its circumstances. The size, nature and circumstances of the business, financial and non-financial resources, and the practicability and the cost of measures to eliminate sexual harassment and related inappropriate conduct, as well as anything else relevant, will all be taken into account in assessing our compliance.
The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 introduces an express prohibition on any conduct that results in a ‘hostile workplace environment on the ground of sex.’ A workplace environment is hostile on the ground of sex if:
- it results from conduct in a workplace, and
- the conduct is reasonably anticipated to possibly result in a workplace environment being offensive, intimidating or humiliating for people of one sex in general, rather than a particular person.
A hostile work environment captures conduct which is often the precursor to sexual harassment and can be created where behaviours go unchallenged or are considered “just the way we do things here.” Examples of a hostile environment could include displaying obscene or pornographic materials, general sexual banter, innuendo and offensive jokes, or casual sexism.
Potential follow up question:
And if so, are the board’s expectations around preventing sexual harassment clearly communicated to all employees and stakeholders?
- As board members and senior executives, we are fully aware of the risks of sexual harassment in our organisation, and the underlying contributing factors such as [you could highlight the diversity in your workplace and leadership team or lack thereof].
- Our organisation is taking all necessary measures to tackle any instances of sexual harassment or related inappropriate conduct in our workplaces to ensure they are safe, respectful, and inclusive for everyone.
Refer to board communication on safety and diversity to offer details specific to your organisation.
[Send out an email to all employees signalling your intention to address sexual harassment in the workplace. See our suggested email template here].
- The safety and wellbeing of our employees is our highest priority, and we are committed to providing a safe and respectful culture for all our team members.
- We have a strong culture built on [list specific values and key aspects of your culture].
- [Describe specific measures in place, such as a reporting hotline, training, reporting dashboards, gender quotas for boards/executive roles, frequent and effective CEO/leadership statements on gender equality and eradication of sexual harassment, have in place a data-informed strategy to create and maintain a respectful/flourishing/high performing culture, updated policies/training/education and understanding of legal obligations, regular and active monitoring of culture and safety etc].
- See our ‘Charter wording: Board and Committees’ template for further practical measures that the board/executive team can take.
- We want matters to be reported so we can act on them and ensure the behaviour is not repeated.
- We are open to offering training to our managers to ensure they’re well equipped to have these conversations and to give employees peace of mind that their report will be handled professionally and respectfully. (Recommendation 45 of the Respect@Work 2020 National Inquiry into Sexual Harassment in Australian Workplaces Report outlines what this training should entail).
- [Describe specific measures in place to allow reporting, such as anonymous reporting option, confidentiality and privacy protections in place, resolution processes and follow up support that’s available].
Potential follow up question
Is this being discussed enough at a board level?
- Our board recognises the importance of diversity – [describe the composition of the board which ideally demonstrates this diversity, or outline intentions to improve and outline the benchmark you’re aiming to achieve – i.e. “Over the next three years, we’re aiming to increase female representation on our board by X%”].
- We review senior leaders’ performance regularly against our shared commitment to upholding all aspects of our culture and values.
- Our conversations are firmly anchored around culture, values and behaviour. Any instances that demonstrate that these are not being adhered to are discussed openly and acted upon.
Potential follow up questions:
Are leaders measured against their commitment to eliminating sexual harassment and related inappropriate conduct, and demonstrating an ethical and respectful management style?
Are these measures considered in performance reviews and remuneration?
- Our board recognises the importance of diversity in leadership and the critical role this plays in ensuring a respectful and inclusive culture. [Describe the composition of the leadership team which ideally demonstrates this diversity, or outline intentions to improve, including the benchmark you’re aiming for].
- We review senior leaders’ performance regularly against our shared commitment to upholding all aspects of our culture and values.
- Performance reviews and remuneration outcomes reflect leaders’ commitment to a range of measures, including their role in supporting a strong culture which is respectful and inclusive for all.
- We hold ourselves publicly accountable by talking about our approach to sexual harassment and related inappropriate conduct in our external reporting (including in annual reports and investor presentations).
Potential follow up questions:
Does the board receive reports on sexual harassment and related inappropriate conduct?
Are there any trends/systemic issues evident in the reporting?
- Regular reports on all aspects of workplace safety, including sexual harassment and related inappropriate conduct, are provided to the board, audit, and risk committee/other committees.
- Serious matters, such as allegations of sexual harassment and related inappropriate conduct, are elevated to the board immediately.
- To date we [are/are not] seeing trends in the reporting of sexual harassment and related inappropriate conduct. [If you are, be transparent with the details.] Reports are reviewed in detail and any systemic issues that arise are closely examined.
- You can get a clear view on any important trends by implementing a robust reporting process. See some example reporting dashboards here.
Potential follow up questions:
Does the board understand the prevalence of sexual harassment and how it relates to the organisation’s culture?
Do staff surveys ask about culture perceptions, sexual harassment, and related inappropriate conduct?
- Regular reports of on all aspects of workplace safety, including sexual harassment, are provided to the board, audit and risk committee/other committees.
- To date we [are/are not] seeing trends in the reporting of sexual harassment and related inappropriate conduct. Reports are reviewed in detail and any systemic issues that arise are closely examined.
- Annual/biannual staff surveys address all aspects of culture, including sexual harassment and related inappropriate conduct, and any trends in reporting are elevated for discussion by the leadership team and the board.
- Exit interview feedback [is anonymous] and are elevated for discussion by the leadership team and the board to provide guidance as to certain areas of the business that are higher risk.
- Turnover rates are considered and any trends by gender and whether departure was voluntary are elevated for discussion by the leadership team and the board.
- Remuneration strategy includes incentives linked to behaviours, rather than solely financial strategies.
Risk management processes form part of the organisation’s risk governance framework and this extends to the identification of sexual harassment and related inappropriate conduct and all other matters of workplace safety.
Potential follow up questions:
Do the organisation’s arrangements for reporting of sexual harassment balance confidentiality with transparency?
Are non-disclosure agreements (NDAs) required. If so, does the board understand the extent to which they are used?
- Confidentiality during resolution processes, including investigations is paramount to protect the wellbeing of those involved and the integrity of any investigation. Knowledge of the matter is confined to those who have a need to know. However, once there has been a resolution of the issue, appropriate transparency is necessary so the organisation can learn from what has occurred and build confidence in the organisation that what has been learned will inform better prevention. We aim to balance confidentiality and transparency to achieve ‘respectful transparency’ over the prevalence of harmful behaviours, their nature and how we are dealing with them.
- The Champions of Change Coalition has developed new principles on confidentiality and transparency. Giving people who have experienced sexual harassment a voice, choice and taking a case-by-case approach is paramount.
- Respectful transparency involves considering whether NDAs or confidentiality clauses in settlement agreements are used at all or what the clauses will say. NDAs can prevent transparent reporting and discussion on sexual harassment as part of an organisation’s governance and can perpetuate a culture of silence. We will aim to ensure that NDAs or confidentiality clauses in settlement agreements do not prevent a person from telling their story.
- The Respect@Work Council has developed best practice Guidelines on the Use of Confidentiality Clauses in the Resolution of Workplace Sexual Harassment Complaints. We will aim to comply with this best practice guidance and consider the need for a confidentiality clause on a case-by-case basis.
Potential follow up question:
Have directors and staff at all levels received training about sexual harassment and related inappropriate conduct?
- [Describe your training programs and resources available to staff or signal your intention to introduce more comprehensive measures]. (Be detailed and ensure you stick to any promises made).
What other measures are in place to prevent and monitor sexual harassment and related inappropriate conduct?
- [Describe any diversity targets, diversity information per seniority level, CEO/leadership statements regarding the importance of gender equality and the eradication of sexual harassment, demonstrate understanding and preparation for the new requirements from WGEA, including new mandatory reporting on sexual harassment, harassment on the ground of sex and discrimination from 2024].
- [Describe your organisation’s specific values and key aspects of culture – for example, good leadership and governance, human-centered and trauma-informed processes and systems, balancing confidentiality, and transparency to achieve respectful transparency, applying appropriate systems and processes for managing risks, and building trust that your organisation is committed to preventing and appropriately responding to harmful behaviours].
- Our annual/biannual staff surveys address all aspects of culture, including respect and safety, and any trends in reporting are elevated for discussion by the leadership team and the board.
Potential follow up question:
Are adequate measures in place to promote gender diversity across the organisation, including in leadership roles?
- We promote diversity across all levels of our organisation and aim to reflect the gender and broader diversity represented by our community.
- [List relevant percentages of women in leadership roles and outline any future intentions to improve].
- [List other specific things that the organisation does to promote equal opportunities, such as gender targets, taking a gender lens to recruitment and succession planning or mentorship/professional development opportunities for women].
- We prioritise a human-centered and trauma-informed process and will give serious consideration to how you wish the matter to be resolved, subject to our duty of care to keep everyone safe.
- [Outline how individual can raise concerns – for example, make a report (by disclosing their identity of anonymously). This can be done either internally (for example with a manager, HR or other person) within the organisation or externally.]
- We prioritise a human-centered and trauma-informed process and will give serious consideration to how you wish the matter to be resolved, subject to our duty of care to keep everyone safe.
- [Outline how the organisation will handle concerns – for example, formal and informal resolution options available, and the views of the person affected will be taken into account provided the outcome keeps everyone safe].
- We will support those who experience the unlawful behaviour and those who support them (including those who may witness and raise concerns), including by prohibiting victimisation.
- If a person in our workplace engages in this unlawful behaviour, we may take disciplinary action or report any criminal matter to the police.
Potential follow up question:
How will control measures be monitored, implemented, and reviewed?
- We manage psychosocial risks (which include sexual harassment and related inappropriate conduct) in accordance with work health and safety risk management principles.
- For example, the Champions of Change Coalition resources outline how to address sexual harassment and related inappropriate conduct as a work health and safety issue.
- Board members and officers will exercise due diligence and take reasonable care to ensure we comply with this duty (for example, by regularly reviewing the processes and data available and considering whether further measures should be implemented).
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