The Equal Opportunity Act 2010 requires organisations to take proactive steps to eliminate sexual harassment from happening in the workplace as far as is reasonably practicable. To avoid vicarious liability for the conduct of their employees and agents, employers and principals are also required to take reasonable precautions to prevent sexual harassment.
Both the Australian Human Rights Commission (AHRC) and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) have published guidelines highlighting key steps in the prevention of sexual harassment in the workplace.
Australian Human Rights Commission
Obtain high-level management support
In March 2018 and November 2019, the VSB released Sexual Harassment Statements making it clear that sexual harassment has no place in the Victorian public sector. Signed by all Departmental Secretaries, the Victorian Public Sector Commissioner and the Chief Commissioner Victoria Police, these statements were circulated to all staff and provided to portfolio agencies for distribution.
Write and implement a workplace sexual harassment policy
Building on the VSB statements on sexual harassment, the VPSC has issued a Sexual Harassment Model Policy (the Policy). The Policy promotes consistent practice across the Victorian public sector so that those who have experienced sexual harassment have the confidence to come forward.
Provide regular training for all staff
Effective implementation of sexual harassment process and procedures is supported by training for all staff. Training can be e-based and/ or face-to face and could be provided as part of induction, as regular training or as refresher training (or ideally all of the above). Training should be tailored to suit organisational requirements but should seek to:
- highlight relevant legislation;
- reference the organisation’s sexual harassment policy;
- reference an employer’s obligation to act;
- reference bystander interventions; and
- be available to all executives, managers and staff.
As part of training, organisations could provide employees with information on how to conduct themselves appropriately outside of the workplace in circumstances where there is a link to employment. It needs to be made clear that inappropriate conduct may result in a breach of the Codes of Conduct. Expected standards of behaviour should also be reinforced before a work-related social function, such as an office end-of-year party.
Encourage appropriate conduct by senior staff
The binding Codes of Conduct set out the behaviours that are expected of all Victorian Public Sector staff. Senior staff and those with management responsibilities have a particular responsibility to model the behaviours and to lead and promote workplaces that are grounded in respect and free from discrimination and harassment.
Create a positive workplace environment
Organisations have a range of policies and strategies in place that aim to support respectful workplaces. Developing and sustaining a culture of respect and equality is ongoing and requires regular consideration. While culture can be understood to be as simple as ‘the way we do things around here’, regular consideration of how an organisation is tracking is valuable. It allows an organisation to align its purpose to the public sector values and reinforce its workplace culture.
The AHRC 2020 Respect@Work Sexual Harassment National Inquiry report found that current approaches to preventing and responding to sexual harassment in workplaces are inadequate. They typically rely on people to come forward and report sexual harassment, often contributing to ongoing stress to staff. In response to the shortcomings of current approaches, the AHRC recommends that workplaces adopt a new framework that is:
- adaptable for businesses of all sizes and in all industries; and
- designed to minimise harm to workers.
The new framework is structured around seven domains. It recognises that improving workplace prevention and responses requires a new and more holistic approach that looks beyond policies, training and procedures.
To better prevent sexual harassment, the AHRC recommends action in the following areas:
- Leadership – develop and display strong leadership that contributes to cultures that prevent sexual harassment.
- Risk assessment and transparency – focus on identifying and assessing risk, learn from past experience and be transparent about sexual harassment, both within and outside of workplaces, to mitigate the risk it can pose to businesses. This can help improve understanding of these issues and encourage continuous improvement in workplaces.
- Culture – build a culture of trust and respect, that minimises the risk of sexual harassment occurring and, if it does occur, ensure it is dealt with in a way that minimises stress to staff. This includes the role of policies and human resources practices in setting organisational culture.
- Knowledge – develop new and better approaches to workplace education and training, to demonstrate a commitment to addressing sexual harassment and initiate change by developing a collective understanding of expected workplace behaviours and processes.
To better respond to sexual harassment, AHRC recommends action in the following areas:
- Support – prioritise staff well-being and the provision of support to staff before they make a report, after they report and during any formal processes.
- Reporting – increase the options available to staff to report workplace sexual harassment and address barriers to reporting. Create new ways for your organisation to intervene to address sexual harassment, other than launching a formal investigation. Adopt a victim-centric approach to the way investigations are conducted when a report is made to minimise unnecessary pressure on staff.
- Measuring – collect data at a workplace-level and industry-level to help improve understanding of the scope and nature of the problem posed by sexual harassment. This includes understanding the prevalence, nature and impacts of workplace sexual harassment as well as the effectiveness of workplace initiatives designed to address it.
Victorian Equal Opportunity and Human Rights Commission
Understand the employer obligations under the Equal Opportunity Act 2010 and have up-to-date knowledge about workplace sexual harassment
Organisations must understand the law relating to sexual harassment, including their positive duty and the drivers and impacts of sexual harassment. Leaders and supervisors should be equipped with the knowledge to identify and respond to sexual harassment in the workplace.
Develop and implement an effective sexual harassment prevention plan
Organisations must assess what steps they will take to prevent sexual harassment, including measures in compliance with the six minimum standards outlined in the VEOHRC guideline, and have documented the plan. Staff and their representatives should have the opportunity to contribute to the development or revision of the plan. Staff should know where to find the prevention plan, including any relevant policies and procedures. Leaders must implement the plan and are accountable for the commitments within it.
Drive a culture of respect by building organisational capability
Organisations must set and clearly communicate the expectations of respectful workplace behaviour to staff. Steps should be taken to ensure that staff understand that sexual harassment and victimisation are against the law and will not be tolerated. Bystanders should be encouraged to act safely to respond to sexual harassment.
Manage risks factors for sexual harassment
Organisations must regularly identify and assess risk factors for sexual harassment, including by seeking feedback from staff. Staff should understand and be encouraged to use systems in place to address risk. Organisations must also recognise and treat sexual harassment as a work health and safety (WHS) risk, using existing systems and processes for managing WHS risks or hazards to eliminate or control the risk of sexual harassment occurring, so far as reasonably practicable.
Address sexual harassment consistently and confidentially to hold harassers to account
Organisations must develop a fair and confidential reporting procedure in consultation with staff. The well-being of the people who have made reports is a priority. Employers should ensure that staff know how and where to make a report and are supported to do so. Responses to reports should be timely and consistent, with appropriate disciplinary outcomes. Employers should ensure that staff are supported throughout the reporting process, including through identifying and preventing victimisation and prioritising staff well-being.
Regularly review, evaluate and improve outcomes and strategies
Organisations should regularly collect and assess reporting and data for trends, patterns and lessons to drive continuous improvement. Employers should regularly review and update sexual harassment prevention plans (e.g. annually) to drive continuous improvement. Employers should also ensure they are transparent about trends, patterns and lessons with staff, boards and key stakeholders. Staff should have confidence that sexual harassment is being eliminated in their workplace.
5.1 Calling out inappropriate behaviour
Improving the ability of all staff to call out inappropriate behaviour that they hear or see, promotes a positive workplace culture free of sexual harassment. Calling out poor behaviour in a respectful way also supports those who may be experiencing sexual harassment and reinforces other strategies to address sexual harassment in the workplace.
Any organisation looking to encourage staff to call out inappropriate behaviour, and thereby promote and implement bystander strategies, needs to ensure that staff are empowered to do so. Bystander action is supported by broader culture change activities. This includes training and education, so that staff know that they are protected from reprisal or victimisation should they speak up.
Responding to sexual harassment or knowing how to react when witnessing inappropriate behaviour may be challenging. Organisations can refer to the VEOHRC sexual harassment support and response tool. It’s designed to help people navigate difficult conversations about sexual harassment in the workplace.
It is recognised that in many instances people will not feel confident to report the behaviour. If employees feel that they are able to respond, some suggested opening lines from comebacksatwork.com include:
- “I don’t think that joke was very funny.”
- “For people who respect each other, we seem to be a bit off course today.”
- “This seems like a good time to take a break and reflect upon what you just said/what just happened.”
- “I am just taking a moment to be sure I heard/saw you right and to ask, did you really just say/do that?”
- “Can we please pause for a moment? I just want to make sure we are being respectful.”
Staff can also be an active, helpful bystander by assisting a victim/survivor immediately after they have witnessed a sexual harassment incident. For example, the staff member can acknowledge the unacceptable behaviour and ensure the victim/survivor knows about reporting and support mechanisms available to them. Bystanders can also report an incident they have witnessed.