Creating respect in the workplace requires consideration and action from many parts of a business — beyond HR.

The senior leadership team and Work Health and Safety (WHS) practitioners also have a role in preventing and responding to workplace sexual harassment.

And it’s not just about complying with the “positive duty” of the Sex Discrimination Act, those who attended Ai Group’s recent webinar on Implementing Respect@Work heard.

Complying with WHS regulations relating to sexual harassment is equally important, with various aspects of legislation overlapping.

There are practical steps businesses can take now, webinar presenter Nicola Street, Ai Group’s Director of Workplace Relations Policy – Diversity, Equity & Inclusion, said. 

New guidelines 

On August 9, and following the recording of the webinar, the Australian Human Rights Commission (AHRC) released its Positive Duty Guidelines to assist businesses and organisations to comply with the new positive duty in the Sex Discrimination Act.

The guidelines are framed around the seven minimum standards contained in AHRC’s Respect@Work Report and relate to:

• leadership,
• knowledge, 
• risk assessment and transparency, 
• culture, 
• support, 
• reporting and response and 
•  measuring.

The seven minimum standards are intended to give businesses a framework to implement and manage their positive duty.

“Such a framework highlights that this is an organisational approach to prevention in the same way that you would adopt an approach for WHS prevention,” Ms Street said.

“It is a far more useful way to think about the positive duty, rather than just looking at training and a policy.” 

The types of actions employers and persons conducting a business or undertaking (PCBUs) should be considering in relation to implementing the seven minimum standards are framed by reference to business size. A large business is generally defined as a business with 200 or more workers.

“As such, it is essential that businesses are aware of and understand the guidelines,” Ms Street said.

“They also give businesses an indication of what AHRC will look for if it were to exercise its compliance functions in relation to a PCBU’s suspected non-compliance with the positive duty.

“It’s important your organisational leaders understand this is a broad framework – it’s not just a workplace relations amendment.”

AHRC will commence its new compliance and enforcement function in relation to the positive duty on December 12.

A 2022 snapshot of workplace sexual harassment 

One in three people surveyed experienced sexual harassment at work in the past five years.

Groups most vulnerable include those who:

• are aged 15-29,
• identified as LGBITQ+,
• are Aboriginal & Torres Strait Islander and
• have a disability.

The most common form of workplace sexual harassment experienced was offensive, sexually suggestive comments or jokes, followed by intrusive questioning — types of comments that often provide a gateway for more serious forms of sexual misconduct.

Fewer than one in five people who experienced harassment came forward to make a complaint.

Similarly, while 40 per cent of sexual harassment incidents are witnessed, only a third of witnesses speak up.

“It’s an issue and a form of conduct that impacts everyone,” Ms Street said.

A 2022 snapshot of sexual harassment and employers 

While most people surveyed said their organisation was committed to ensuring a safe working environment free from sexual harassment and that their organisation prioritised gender equality and diversity, less than half thought their line manager or direct supervisor showed any real leadership in preventing and responding to harassment.

Further, less than half reported that they had attended workplace training on sexual harassment.

A new preventative framework 

Creating Respect@Work involves applying a new preventative framework that integrates different obligations on employers under the Fair Work Act, WHS laws and the Sex Discrimination Act.

Reporting obligations under the Workplace Gender Equality Act 2012 (for employers with 100+ employees), along with state and territory anti-discrimination laws, also apply.

A new sexual harassment prohibition in the Fair Work Act, combined with an expanded sexual harassment dispute jurisdiction in the Fair Work Commission, is also in effect, having commenced on March 6, as part of the Secure Jobs, Better Pay Amendment Act 2022.

Relevant WHS laws

Sexual harassment is a psychosocial risk that may damage a person’s psychological health, fellow webinar presenter Tracey Browne, Manager, National WHS and Workers’ Compensation Policy, Ai Group, said.

As such, the overarching obligation within the Work Health and Safety Act requires a PCBU to eliminate or minimise risks to psychological health and safety as much as possible.

Risk-management approach

“There is a strong focus on consultation that sits around everything we do in health and safety and an obligation to identify hazards, assess and control risks and review those control measures as we implement them,” Ms Browne said.

“Control measures are more than just looking at policies and procedures.

“We need to look at conditions in the environment that might increase the risk of sexual harassment and put people in a vulnerable position. 

“It’s also important to consider how psychosocial hazards may interact or combine as we don’t usually have a psychosocial hazard that sits on its own and isn’t influenced by other areas.” 

What businesses can do now

• Ensure your senior leadership team/Board are up to date and are involved
• Consult with workers about sexual harassment hazards and risks as part of addressing all work-related psychosocial risks
• Identify circumstances that might increase the risk of sexual harassment occurring
• Consider high level controls that will eliminate or minimise risk to meet the new requirements of the Respect@Work Bill and OHS/WHS obligations
• Prepare preventative and compliance plans
• Review policies and training to ensure they are effective and consistent with legal requirements

Finally

“Creating respect in the workplace requires involvement from the entire organisation, driven by the senior leadership team,” Ms Street said.

“When you develop a plan, ensure you are complying with the positive duty, remembering the specific steps you can take in relation to those seven minimum standards and how they overlap and are framed by WHS obligations.”

A set-and-forget policy won’t do.

“If you did that, you would probably be in a position where you might not be compliant with the positive duty,” Ms Street said.

“It’s much broader than policy and training; it’s about getting a compliance-prevention plan in place and having that supported and driven by your leadership team.”

Ms Browne added: “WHS people can’t sit on their own and implement the health and safety obligations and HR and workplace relations practitioners can’t sit on their own and implement Respect@Work.

“Organisations must look at this holistically.”

Ai Group is a member of the Federal Government’s Respect at Work Council and has been closely involved in monitoring and contributing employer views to the legislative processes leading up to the latest legislative changes around creating respectful workplaces.

For further assistance, please contact Ai Group Workplace Lawyers or our WHS Consultants on 13300 55 66 77.