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Respect@Work – know your Positive Duty obligations

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Is sexual harassment at work a big issue in Australia?

A 2018 survey by the Australian Human Rights Commission found that sexual harassment in Australian workplaces is pervasive and widespread, with 39% of women and 26% of men reporting they had experienced sexual harassment at work in the previous five years.

Recent high profile cases underscore the point that sexual harassment at work continues to be an everyday experience in Australia:

  • The alleged rape of Brittany Higgins in Parliament House triggered the Set the Standard Review which shone a light on the unacceptable history of workplace harassment and sexual assault in Commonwealth Parliamentary Workplaces.
  • Findings that former High Court judge Dyson Heydon sexually harassed six junior female court staff during his time on the bench highlighted that sexual harassment is prevalent in the legal profession and grossly underreported because of power imbalances, very real fears of damaging career prospects and the fact that the process places a heavy burden on victims to make a complaint. 
  • The report into Workplace Culture at Rio Tinto found that sexual harassment was a significant organisational challenge, with survey respondents indicating an overall prevalence of 11.2%, and women significantly more likely to experience sexual harassment (28%, compared with 7% of males).

Deloitte found that the cost of workplace sexual harassment in Australia in 2018 was approximately $3.5 billion due to lost productivity and other costs such as lost wellbeing for victims, costs to respond to complaints, absenteeism and staff turnover.  But really, the economic case for creating a better and safer workplace is inseparable from the social and moral case.

The widespread nature of sexual harassment in workplaces makes it seem that sexual harassment is inevitable.  It is not.  It is both unacceptable and preventable.  It is also clear that the rate of cultural change has been far too slow and the current system is not working. 

What does ‘a Positive Duty’ mean?

The most significant recommendation from the Respect@Work Report is the introduction of a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.  This is a fundamental shift from the current complaints-based approach to one that focusses on prevention and puts the onus on employers to implement positive actions that minimise the possibility of the harmful behaviours occurring in the first place.

What should employers do now to prepare for change?

A positive duty requires employers to take active steps to try to eliminate sex discrimination, sexual harassment and victimisation. This includes developing processes that can be proactively implemented for the workplace to listen, respect and support impacted people.  Processes should be periodically reviewed, audited and reported against to ensure that they remain fit for purpose and demonstrate that employers are doing everything reasonably required to eliminate the sexual harassment and shape a positive culture where sexual harassment is not tolerated. Practical steps could include:

  • Training for leaders regarding gender inequity and the causes of sexual harassment
  • Conduct training for all staff so staff “know the line” between acceptable and unacceptable conduct
  • By-stander training to empower colleagues to speak up and intervene when they see unacceptable conduct directed towards someone they work with
  • Putting in place policies and procedures to prevent sexual harassment
  • Implementing an independent, external reporting line to enable staff to report poor behaviours anonymously
  • Implementing an organisation wide issue management system to capture reports, identify trends and “hot spots” of poor conduct and proactively intervene and minimise possible harm

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