Recent findings from research by the AICD revealed that nearly two-thirds of ASX300 board directors say they are not fully prepared for new sexual harassment laws.
If the top 300 Australian companies with their massive corporate services teams are not confident they are on top of this, how are you feeling?
Don’t feel too defeated. The bonus of being a regional organisation is that you’re smaller and more nimble so it is a bit easier to introduce new policies and procedures.
Here’s everything regional organisations should be across:
1. Does the new sexual harassment law apply to me?
Yes, the new law applies to you. There are no free passes or exceptions. If you engage staff, you have a positive duty to eliminate, as far as possible, the following from occurring:
- discrimination on the grounds of sex in a work context
- sexual harassment in connection with work
- sex-based harassment in connection with work
- conduct creating a workplace environment that is hostile on the grounds of sex
- related acts of victimisation.
A positive duty means you have to be able to show what you did to stop these things from happening. It is not something you can wait to respond to.
Think of all the things that go into meeting a positive duty. It requires you to be proactive rather than reactive. What must be done will change on a case by case basis, but you will need to go through quite a few steps which may include (this list is not exhaustive):
- risk assessment and mitigation specific to your organisation
- telling all staff what is expected of them (don’t forget your contractors and volunteers)
- training and keeping training records
- having clear policies which detail expectations and how to make complaints
- having a whistleblower procedure for anonymous complaints
- checking regularly whether things are on track through things like staff feedback
- and did I mention, getting it all in writing…?
If there is an incident in your workplace, these are some of the things we (and Fair Work) will be asking you for. We’d much rather check them for you now!
2. Some workplaces have to be even more careful.
There can be risk factors about your organisation which mean you should be even more careful.
For example:
- You might have staff who work alone with customers. Have you considered the possibility of customers harassing your staff?
- You might have a close workforce where “banter” may occasionally cross the line. Where do your staff think the line is?
- You might have people of diverse gender identities. And you may not know it.
- You might have relationships form amongst colleagues. Do you have clear expectations for how this is handled both at the start and end of a relationship?
- You might have school aged staff or volunteers. Have you provided them with appropriate training and support?
Do you know your obligations to all of the people in your organisation to provide them a workplace that is safe and free from sexual harassment?
The situation that is becoming the most common in my recent experience is discussions between colleagues outside of work hours that might involve sending sexualised content or commentary between them. When the relationship sours, the workplace ends up getting involved. It makes things exceptionally difficult for the employer when they haven’t done all of the above.
3. It is intentionally hard.
The now three year old Respect@Work report that brought about these changes in the law said that drastic things needed to happen to proactively create gender equality.
Their website talks about the main driver of harassment being power dynamics and notes that:
“In the workplace, power dynamics are commonly thought to be associated with an individuals’ seniority, age or value to a business. For instance, a harasser might be in a position of power due to being the owner of a business, a valued customer of a business, a direct supervisor of a person harassed, or in a position to influence that person’s future career prospects.” Read more here.
This can make it really difficult to police behaviour when it might be embedded across your senior staff or is a part of your ‘culture’. But the law says we must. The government is intentionally instigating cultural change. It may be uncomfortable. Elegant solutions may be needed.
4. There is no one size fits all and you’re never ‘done.’
This is something that needs to be regularly reviewed and stress tested. Training needs to be refreshed and updated. Monitoring of staff culture needs to occur, proactively.
There are some frightening statistics that we are up against including lack of reporting with only 18% of sexual harassment incidents reported.
In 2022, Australian Human Rights Commission conducted their fifth national survey into sexual harassment, finding:
- Sexual harassment continues to be an unacceptably common feature of Australian workplaces, with one in three workers experiencing workplace sexual harassment in the last five years.
- Most sexual harassment in Australian workplaces is carried out by men.
- Half of incidents are repeated and of those, half are ongoing for more than one year.
- Only a third of Australian workers think their organisation is doing enough.
Need some help navigating the changes?
Here at Curium Legal, we have the unique blend of employment law expertise, regular appearances in Fair Work, AICD Company Director training and director positions with numerous regional boards. We are uniquely qualified to offer governance consultancy services so management and boards don’t have to navigate these complex changes alone. We can work with your exec team, present to your board, formulate policies, and collaborate on seamless implementation all via our in-sourced consulting.
To enquire contact Sarah on 0492 945 068 or sarah@curiumlegal.com.au
1800RESPECT
If you or someone you know needs support, you can contact 1800RESPECT the national domestic, family and sexual violence counselling, information and support service.
Call 1800 737 732, chat online via the website www.1800respect.org.au or text 0458 737 732.
