The Respect@Work: Sexual Harassment National Inquiry Report (2020)[1] recommended the adoption of a new workplace prevention and response model structured around seven inter-related domains: leadership, risk assessment and transparency, culture, knowledge (capability), reporting, support, and measurement
This framework recognises that sexual harassment is primarily driven by gender inequality and power imbalances and preventing workplace sexual harassment requires employers to:
- develop and display strong leadership that contributes to cultures that prevent workplace sexual harassment
- promote gender equality
- recognise workplace sexual harassment as a work, health and safety issue, which involves identifying, assessing, controlling and monitoring risks
- build a culture based on trust, respect and psychological safety
- develop workforce capability through education and training
- increase reporting options and address barriers to reporting by prioritising a reporter’s wellbeing before and after reporting, and
- improve understanding of the nature, prevalence and impacts of sexual harassment through measuring, collecting and reporting data
This comprehensive approach more effectively meets an employer’s positive obligation to prevent sexual harassment than a traditional compliance-based, reactive approach relying heavily on policies and reporting.
In a series of posts, I’ll be providing further information on these levers, starting in this post with leadership, specifically board governance and oversight. Without effective leadership on eliminating gender-based discrimination and sexual harassment and improving the workplace culture more broadly, other interventions are likely to be of limited success.
Directors
Directors have obligations under the Corporations Act 2001 (Cth) to act in good faith, and with care and diligence. The Australian Institute of Company Directors (AICD) Guiding Principles for Good Governance also require that directors should strive to:
- instil and continually reinforce ‘a culture of acting lawfully, ethically and responsibly’ across an organisation
- be accountable for setting the cultural and ethical tone of the organisation
More specifically, work health and safety laws require officers, which include company directors, to exercise due diligence to ensure a PCBU (persons conducting a business or undertaking) meets its duties. This includes taking reasonable steps to ensure the business or undertaking has and uses appropriate resources and processes to eliminate or minimise risks of sexual harassment.
The Australian Institute of Company Directors (AICD)’s Director’s Guide to Preventing and Responding to Sexual Harassment at Work [2] provides guidance to directors on how to fulfil these duties, including:
1. Set minimum expectations and ensure adequate policies are in place and accessible for all staff.
a. Do you have an adequate policy on preventing and addressing workplace sexual harrasment?
b. Is the policy approved by the board and regularly reviewed as part of the governance calendar?
2. Talk about sexual harassment often including in board meetings and be transparent with workers.
a. Do all directors have an adequate understanding of workplace sexual harassment and its drivers?
b. Are the board’s expectations on the prevention of sexual harassment clearly communicated to staff?
c. How long has it been since the board communicated these expectations to staff?
3. Carefully model appropriate behaviour.
a. Are you confident directors’ personal communication styles and behaviour model the desired culture?
b. Do you discuss this at the board level?
4. Recruit the right leaders with a gender balance, focus on gender balance, and hold them to account.
a. Are an ethical and respectful management style and commitment to eliminating sexual harassment part of the performance indicators for senior management?
b. Are these indicators considered in senior management performance reviews and remuneration settings
5. Encourage reporting and ensure there is no backlash for doing so. Interpret trends in reports or complaints of sexual harassment.
a. Does the board receive periodic reporting on sexual harassment?
b. What are the trends in reporting? Does the board consider potential systemic issues when reviewing periodic reporting?
6. Develop metrics with management that will be regularly monitored by the board and consider trends as overarching issues, rather than part of an isolated event.
a. Are you comfortable that the board understands the dynamics and prevalence of sexual harassment in the organisation and how it relates to the organisational culture?
b. Does the organisation conduct staff surveys that ask about perceptions of the culture and sexual harassment?
7. Manage sexual harassment as a health and safety risk.
a. Has the organisation included sexual harassment when identifying WHS hazards?
b. Has the risk of sexual harassment been eliminated or minimised so far as reasonably practicable?
c. Have workers been consulted on the risks and how they are managed?
d. Does the board, or relevant board committee, consider workplace sexual harassment risks in overall risk management and governance?
8. Consider the board’s public position and approach to confidentiality, including the use of non-disclosure agreements and reporting publicly.
a. Are you confident that reporting of sexual harassment balances confidentiality with transparency and leadership?
b. Does the board understand the use (if any) of NDAs within the organisation?
9. Ensure the organisation’s internal processes encourage reporting of sexual harassment, handle reports effectively and provide natural justice to all.
a. Are you confident your organisation’s management of reports, whether formal or informal, is based on due process and natural justice and reflects your commitment to eliminating sexual harassment?
10. Ensure adequate resources to prevent and address sexual harassment.
a. Have directors and staff at all levels received training about sexual harassment?
11. Build a just, respectful, and safe culture, including by introducing processes for assessing organisational culture.
a. What tools does the board have to assess organisational culture and staff morale?
b. Is the board confident that the culture is one of respect and safety?
12. Promote gender equity.
a. Are there adequate initiatives in place to promote gender equality in the organisation, including in leadership roles?
In addition, the AHRC’s Repect@Work website[1] (Respect@Work) notes it is beneficial if a board has at least one member with sophisticated and specialist skills, knowledge and experience on gender and workplace culture issues and/or effective prevention and management of sexual harassment.
Other sources of guidance for directors and boards in relation to their responsibilities to address and prevent sexual harassment and ensure good governance include:
- Governing Company Culture – Insights from Australian Directors[3] (Australian Council of Superannuation Investors and AICD)
- Preventing Workplace Sexual Harassment – obligations for directors[4] (AICD), which provides guidance for directors to implement the Safe Work Australia guide on Preventing workplace sexual harassment[5]
Culture Plus Consulting can support you in meeting your positive duty through workplace culture reviews, risk assessment and recommendations, learning and development, and advice. Email info@cultureplusconsulting.com for details.
This information is general in nature and does not constitute legal advice.
Resources:
[1] https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020
[2] https://www.aicd.com.au/organisational-culture/business-ethics/change/directors-guide-to-preventing-and-responding-to-sexual-harassment-at-work.html
[3] https://www.aicd.com.au/organisational-culture/business-ethics/change/governing-company-culture-insights-from-australian-directors.html#:~:text=By%20providing%20real%2Dworld%20insights,the%20key%20issues%20and%20questions
[4] https://www.aicd.com.au/organisational-culture/business-ethics/business-conduct/preventing-workplace-sexual-harassment-obligations-for-directors.html
[5] https://www.safeworkaustralia.gov.au/sites/default/files/2021-01/Guide%20for%20preventing%20workplace%20sexual%20harassment%20-%20for%20publishing.pdf