THE SEXUAL HARASSMENT AWARENESS AUDIT
Pointing you in the right direction
Australian workforces have certainly not been immune to the impacts of global movements such as #MeToo and #TimesUp.
As part of Diversity Australia’s commitment to providing businesses with the best workplace relations support, we are proud to introduce the Sexual Harassment Awareness Audit, an essential program where experienced employment lawyers can assist businesses to fulfill their responsibilities to keep employees safe from sexual harassment.
Why is this
important for your business?
Employers have a positive duty under Workplace Health and Safety legislation to protect against sexual harassment occurring in the workplace. A national inquiry conducted in 2018 regarding sexual harassment, led by the Australian Human Rights Commission, found that approximately 39% of women and 26% of men had experienced sexual harassment in the workplace.
The criminal, civil, and reputational penalties which may apply if this duty is not met is a huge burden for employers who are not well versed in the [email protected] legislative changes, or who may not have the internal resources to manage these issues effectively.
Australian workforces have certainly not been immune to the impacts of global movements such as #MeToo and #TimesUp. In fact, a 2018 national inquiry (National Inquiry) undertaken into sexual harassment led by the Australian Human Rights Commission found that approximately 39% of women and 26% of men had experienced sexual harassment in the workplace. The unquestionably alarming findings brought into sharp focus Australia’s approach to sexual harassment, and prompted the implementation of the [email protected] legislative changes
As part of those changes, as of 11 November 2021, the Fair Work Commission (Commission) is now able to hear applications for ‘orders to stop sexual harassment’, an extension of the powers afforded to it under the anti-bullying jurisdiction currently in place. The aim of the jurisdiction is to create a low cost and simplified mechanism to deal with sexual harassment complaints.
Given the criticisms levelled at the efficacy of the anti-bullying jurisdiction (which deals with only approximately 800 cases per year), it remains to be seen whether the ability for the Commission to issue stop sexual harassment orders will have any real impact on the pervasive nature of workplace sexual harassment. Despite this, it is important that employers are familiar with how the new jurisdictions operates, and we set out below the key things to keep in mind.
What is involved in the Audit program?
Our legal team will review any of your existing equal opportunity and sexual harassment policies and any sexual harassment and/or discrimination training.
We will conduct a virtual audit/compliance check with the inclusion of anonymous surveys consisting of randomly selected employees and key decision makers with the purpose of determining:
- the prevalence and risk of sexual harassment in the workplace;
- awareness and understanding of company procedures and policies;
- awareness and understanding of how to report complaints of sexual harassment or discrimination;
- awareness of appropriate courses of action when responding to allegations of sexual harassment; and
- awareness of positive duties and employer responsibilities.
REPORT AND DISCUSSION OF FINDINGS
We will provide a ‘Sexual Harassment Awareness Audit Report’ that includes:
- any areas of concern or non-compliance;
- the results from our investigation; and
- a review on current policy and training procedures.
In addition to this report, we will organise a 1-hour meeting to provide recommendations to improve your safety compliance in relation to sexual harassment to ensure you are covered.
After 12 months, we will conduct an additional survey to assess progress in relation to any ‘at risk’ areas we identified and will provide you with an additional compact report on our findings.
Enter the New Year with confidence and fill out the form below to book a free consultation to discuss the Sexual Harassment Awareness Audit further.
When does sexual harassment at work occur?
Sexual harassment is defined by the Sex Discrimination Act 1984 (Cth), which states that a person sexually harasses another if they make an ‘unwelcome’ sexual advance, ‘unwelcome’ requests for sexual favours, or engage in other ‘unwelcome’ conduct of a sexual nature, and that conduct would cause a reasonable person to feel ‘offended, humiliated, or intimidated.’ Sexual harassment takes various forms, and can vary in severity. It includes things like making sexually suggestive jokes, sending inappropriate texts, or other similar conduct. Employers are liable for acts of sexual harassment which occur in their workplace, unless they have taken all reasonable steps to prevent it.
Who can apply for a stop sexual harassment order?
A person can apply for orders to stop sexual harassment if they:
- are a worker such as an employee, contractor, apprentice or volunteer;
- are not a member of the Defence Force; and
- reasonably believe they have experienced sexual harassment while at work.
Sexual harassment which occurred before 11 November 2021
Whilst applications to the Commission for orders to stop sexual harassment can only be made from 11 November 2021, workplace harassment occurring before this date can still be considered. The Commission can only make an order where it is satisfied there is risk that the worker will continue to be sexually harassed and that there is a risk of future harm. In this way, the jurisdiction of the Commission focuses on future conduct rather than penalising conduct from the past.
What orders can be made?
The jurisdiction affords the Commission the ability to make any order it sees appropriate, aside from an order for compensation. The range of orders that the Commission may make include orders requiring:
- one or more individuals to stop specified behaviour;
- regular monitoring of behaviours by an employer;
- compliance with an employer’s policy;
- the provision of information and additional support and training to workers; and/or
- a review of the employer’s workplace policies.
So, whilst the Commission is unable to order monetary compensation, it certainly may make an order that requires some financial expenditure on the part of the employer to give effect to the order. Separately, it is also important to bear in mind that stop sexual harassment orders may be dealt with by the Commission in the same manner as any other dispute. This means the Commission may direct employers to attend a public hearing, and a public decision may be issued in the matter, creating obvious financial, reputational, and legal risk.
Responding to an application
If you are named as an employer or principal in an application to stop bullying or sexual harassment (or both) at work, you are required to lodge a response to the application with the Commission within 7 calendar days of receiving the application. Employers should seek urgent legal advice from your Legal to help mitigate their exposure to claims made in other jurisdictions, such as breaches of safety legislation, discrimination claims, or claims for damages.
Tips for employers
Last September, we discussed our top tips for preventing sexual harassment in the workplace. The introduction of the federal sexual harassment jurisdiction is just another of many reminders for employers to ensure they’re staying abreast of their obligations, and taking proactive measures to ensure their workers’ health and safety. It is absolutely incumbent on employers to be supporting their own initiatives to create real change within their organisations, and prevent, so far as is reasonably practicable, sexual harassment or discrimination from occurring.
Don’t know where to start? You’re not alone. Our Legal team is launching its new initiative to support businesses of all sizes to take specific, measurable, and practical measures to protect against workplace sexual harassment. Our team of lawyers will be offering a free consultation to employers to discuss the new sexual harassment jurisdiction, work health and safety obligations with respect to sexual harassment and discrimination, and what you can (and should) do now to protect your workers, and your business.