Respect@Work: what the roadmap looks like for workplaces

On 8 April 2021, the Australian Government published its Roadmap for Respect¹ – a response to the Australian Human Rights Commission’s recommendations outlined in the 2020 Respect@Work report.² Their announced amendments, the first few steps in a journey of reforms, carry some important implications for employers and what they can do to fulfil their positive duty to protect against sexual harassment.

The Respect@Work report was the result of two years’ work, considered over 500 submissions, 60 consultation sessions and was a world first inquiry into the drivers of sexual harassment. Sex Discrimination Commissioner Kate Jenkins, who launched the report, said that the problem in Australian workplaces was ‘endemic.’

To say that Australia lags behind comparative OECD countries in preventing and responding to sexual harassment is an understatement. In the 15 months between the release of the report and the publication of the Roadmap for Respect, stories of powerful people (mostly men) using their positions of authority to harass, embarrass, humiliate or offend their more junior (mainly female) colleagues, while their colleagues and employers did little or nothing to prevent the behaviour from occurring, seemed depressingly regular. Think about some of the many public figures and large organisations that have been named in recent months.

Then in February 2020, former Parliament staffer Brittany Higgins spoke publicly about being allegedly raped by a fellow staffer in Parliament House in 2019, leading to other women in Parliament raising their own alleged instances of sexual harassment. Protesters took to the streets and on 15 March 2021, as part of the March 4 Justice, a petition of more than 90,000 signatures was delivered to the Federal Government. A key demand of the petition was that the Government fully implement the 55 recommendations contained in the Respect@Work report.

The majority of commentators, myself included, believe the roadmap fails to deliver the radical change required to ensure workplace equality.

The roadmap recognises the importance of a preventative approach to stop sexual harassment before it occurs and expresses agreement (either in full, or in part or in principle) or ‘notes’ the recommendations in the Respect@Work report.

However, it falls ‘significantly short’ of a commitment to fully implement all 55 or the recommendations. The majority of commentators, myself included, believe the roadmap fails to deliver the radical change required to ensure workplace equality. However, there is no doubt that the events within Australia since the Respect@Work report was published have influenced the Government response.

Jenkins said that she believes, “our community is changing…we are at a turning point – that is my sense. In my time working in this area and particularly looking at workplaces over the 30 years, I‘ve never seen any moment like this.”³

The groundswell of public condemnation of sexual harassment does appear to have meaningfully, and positively, shaped the Government’s response.

One of the key commitments was around ‘simplifying and strengthening the legal framework, existing rights and obligations for employees and employers.’

So what does all this mean for employers?

Key announcements of interest include:

• extending the time limit for a person to make a complaint of sexual harassment to the Australian Human Rights Commission from six months to 24 months;
• clarifying the provisions in the Fair Work Act to:
• enable Stop Bullying Orders to expressly include use against sexual harassment (‘stop sexual harassment orders’);
• clarify that sexual harassment can be conduct amounting to a valid reason for dismissal in determining whether a dismissal was harsh, unjust or unreasonable; and
• expand on the definition of ‘serious misconduct’ in the Regulations to include sexual harassment.
• amending the model Work Health Safety (WHS) Regulations to deal with psychological health, develop guidelines on sexual harassment with a view to informing the development of a Code of Practice on sexual harassment;
• amending the Sex Discrimination Act to impose a positive duty on all employers to ‘take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation, as far as possible’.

The imposition of the so-called positive duty obligation (which already applies to employers in Victoria under the Equal Opportunity Act 2010),⁴ is subject to the Government’s assessment of whether such an amendment would create further complexity or duplication given the existing WHS Regulations and current legal framework. Proposing a positive duty for other states and territories will create an obligation to eliminate discrimination, sexual harassment and victimisation as far as possible.

It is not the role of P&C or HR to ‘fix’ the problem of sexual harassment – it is a leadership issue.

What should employers do?

A clear theme emerging from the Respect@Work report, and the Government’s response, is to shift the responsibility back onto employers to prevent harassment in the first place. This aligns more with the current approach to regulating work health and safety.

Here are some key things employers should do:

1. Ensure you have an effective, clear policy and procedure.
   This should adopt a safety/risk approach rather than a discrimination approach.
2. As a minimum, have a policy prohibiting sexual harassment.
   This should provide clear guidance to employees on what to do if they have a concern or complaint and to leaders concerning their obligations to create a safe workplace. This includes risk assessments and effective training for all workplace participants – including the leadership, the Board (if relevant) and any contractors engaged by your organisation. Ensure they know what your expectations of behaviour are, what your policy states and the potential outcomes if a person is found to have sexually harassed someone.
3. Regularly conduct effective and appropriate workplace training.
   This should clearly reinforce the organisation’s policy on sexual harassment and needs to be engaging! Documentary evidence is also required – this means employers need to show more than employees having attended a training session, but that they understood the content and the policy.
   • Significantly, a Federal Court case in 2020 involving a multinational manufacturer5 found that a training session on its workplace policy, which contained only two slides on sexual harassment and no evidence the training included statements that sexual harassment was unlawful or that disciplinary action would be taken in cases where sexual harassment was proven, was not enough to show the company had taken all reasonable steps to prevent the unlawful behaviour occurring.
   • A more effective approach, and one that looks increasingly likely to become a requirement down the track, is training that targets the underlying gender-based attitudes that give rise to all forms of disrespect and inequality concerning women, including in relation to family violence. Think beyond ticking the boxes of compliance training and aim for some cultural, systemic change. En Masse is a leader in this area, providing targeted and highly engaging culture-shifting programs for organisations such as Victoria Police and the TAC.
4. Adopt a risk management/safety approach to sexual harassment.
   Sexual harassment is a major risk factor for the development of psychological ill-health. Use a risk framework for identifying risk factors in your organisation and take steps to eliminate or prevent those risks. Sexual harassment is a workplace hazard in the same way as electrical hazard or fall hazards – start thinking of it in this context and apply a primary prevention safety lens. Be clear that you expect your leaders to identify and prevent sexual harassment from occurring – not excusing it because ‘that is just how X is, he’s really a good bloke’ or ‘that’s just the way it is around here’ or ‘it’s just a joke, what’s your problem?’. If this is going on in your workplace, you have a problem.
5. Adopt a ‘victim-centric’, trauma-informed approach to managing incidents, claimants and respondents.
   Sexual harassment is not about complaints. We know that only 17 percent of people who experience sexual harassment report it or complain about it, most often because they do not feel safe to report (see point 6 in this list), they do not know how or where to report it (point 1), they do not feel anything will be done about it (point 7) or they are made to feel as though they are the problem (point 5). The Respect@Work report made a number of recommendations about culture, education, transparency and trust – a key one being to move away from a complaints-based system where the person with the least power is the one generally carrying all the risk and trauma of raising the issue. If you are doing the things I have suggested here, and creating cultures in which people are clear about what behaviour is appropriate and not, feel safe to call inappropriate behaviour and have been trained to do so safely, and ensuring you look after the psychological wellbeing of complainants and respondents in the event of claims or investigations, you will be going a long way to driving cultural change and demonstrating that you are doing all you can practicably do to eliminate sexual harassment.
6. Create a culture in which leaders take ownership of the problem.
   It is not the role of P&C or HR to ‘fix’ the problem of sexual harassment – it is a leadership issue. It is the leader’s role to create a culture of psychosocial safety, where staff feel safe and supported to raise concerns, complaints and challenge behaviour. Teach your leaders the tools for creating psychologically safe cultures – it doesn’t come naturally to most of us. This will work to end the culture of shame, victim blaming and silence around sexual harassment, so anyone who experiences it can feel supported and empowered to call it out, whoever the harasser is. This is even more important with the focus on a positive duty and mooted introduction of the Code of Practice and the emphasis in the Respect@Work report, and the Government’s response, to shift responsibility back onto employers to prevent the harassment in the first place.
7. Consider external, impartial investigations for allegations of sexual harassment where appropriate.
   Because sexual harassment allegations so often involve complex issues to do with positional power – for instance, perpetrators in leadership positions where it is difficult to ensure fairness and complete impartiality (think of the impact of in-group bias) – it can be better to get external, independent and appropriately qualified investigators to manage the issue and provide fact-finding reports upon which you can make considered decisions. Management of inappropriate behaviour, particularly if seeking to establish whether or not conduct amounts to serious misconduct, requires well considered and appropriately managed investigations.
8. Remember the old mantra: the standard you walk past is the standard you accept.
   Ensure your leaders role model appropriate behaviours – and if they do not, take visible and appropriate steps to sanction poor behaviour. At the end of the day, your staff will judge you and the organisation by what you do, not what you say. Remember the Boral case above – if you say you have ‘zero tolerance’ for sexual harassment in your policies and procedures you need to ensure you take all reasonable steps to ensure there is ‘zero tolerance’.

Contact me or my colleague Helena Kuo for more information about our gender equality, respectful behaviour and active upstander programs at En Masse, or for more information about our workplace investigations services.

References

1. Australian Government Attorney-General’s Department (8 April 2021). A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces. [available at https://www.ag.gov.au/rights-and-protections/publications/roadmap-for-respect]
2. Australian Human Rights Commission (5 March 2020). Respect@Work: Sexual Harassment National Inquiry Report (2020). [available at https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020]
3. ABC Insiders (7 March 2021). Australian Sex Discrimination Commissioner Kate Jenkins. [transcript available at https://www.abc.net.au/insiders/australian-sex-discrimination-commissioner-kate/13224714]
4. The Equal Opportunity Act 2010 (Vic) imposes six minimum standards that all organisations must follow in order to comply with the positive duty. There are some terrific resources on the VEOHRC website that provide information about what employers can do to meet each standard. The Standards are: Knowledge, Prevention Plan, Organisational Capacity, Risk Management, Reporting and Response and Monitoring and Evaluation.
5. Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2), [2020] FCAFC 13.