Proactive Steps for Sexual Harassment Compliance – A Positive Duty to Combat a Negative Problem

The Future of Sexual Harassment Legislation in Australia  

Following the close of the Australian Federal election, the Australian Labor Party (ALP) Government has proposed significant changes across the employment and industrial relations space, with an emphasis on addressing the remainder of the Respect@Work Report (‘Respect@Work’) recommendations addressing workplace sexual harassment.

The Federal Attorney General has confirmed that the Government is moving to act on the recommendations of the above Report, including the implementation of a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment, and victimisation as far as practicable.

These changes are in addition to the changes implemented by the pervious Liberal Government in late 2021, as well as complementing additional measures many State Governments are proposing to address workplace harassment, including the Northern Territory and Queensland Government’s announcements about being prepared to adopt the positive duty legislation at a state level. The Victorian Government has also pledged to reform the use of non-disclosure agreements in workplace harassment cases.

We can probably anticipate further sexual harassment legislation at a Federal level to emulate the various state and territory measures, including Victoria’s Equal Opportunity Act 2010 (Vic) (‘the Act’), as well as amendments to respective work health, and safety frameworks.  

Victoria – Leading the Charge   

In 2021, the Morrison Government argued that introducing a positive obligation to preventing sexual harassment was an unnecessary measure in response to the Respect@Work report, on the basis that this obligation, whilst not explicit, already existed under safety legislation.

However, in Victoria, a positive duty to prevent sexual harassment now explicitly exists under the Equal Opportunity Act 2010 (Vic). Under this Act, duty holders in Victoria have a legal obligation to take action to prevent workplace sexual harassment, not just respond to it.  

In 2022, the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’), the regulator of the Equal Opportunity Act 2010 (Vic), and with the cooperation of Baker’s Delight Holdings, prepared a report after completing an investigation into how franchise businesses are complying with their responsibilities under the Act.  Baker’s Delight voluntarily participated in this process, seeking constructive feedback from the regulator to determine if their existing processes were sufficient in proactively preventing sexual harassment in its corporate and franchised networks.

The findings of the report have been shared, highlighting the required improvements which need to be made to ensure organisations, including Baker’s Delight, are complying with their positive duty obligations, taking reasonable and proportionate measures to eliminate workplace harassment as far as possible. The report allocated the findings into 2 categories, the responsibilities within franchise businesses and the responsibility for other businesses, meaning the findings can be adapted and used to inform the next steps for all business types. 

Below we go through the steps which the Commission has identified that can strengthen prevention and response frameworks, creating safer work environments for workers. For employers in other states and territories, this report provides insights into the best practice approach to prevention of sexual harassment in workplaces and allows employers to take steps now, to strengthen their toolkits of measures in anticipation of additional state and federal regulation in this space.    

A Positive Duty – What Is It?  

On a state level, the Victorian Act imposes a ‘positive duty’ on Victorian employers to actively prevent and eliminate sexual harassment, discrimination, and victimisation in all areas of public life. This includes workplaces.

The ‘positive duty’ places an obligation on employers to actively do whatever is necessary to prevent workplace sexual harassment, rather than merely responding to sexual harassment as it occurs. Compliance is measured against the Guideline’s six standards:  

1. Knowledge – an example: providing information about sexual harassment throughout the employment network. This can include training modules, policies, procedures, and reporting processes.  

2. Prevention Plan – an example: measures which companies will take to prevent and respond to workplace harassment.  

3. Organisational Stability – an example: established channels that have the capacity to manage and investigate complaints.  

4. Risk Management – an example: additional measures taken by companies to reduce sexual harassment, such as supervision and pre-employment checks.  

5. Report/Response Management – an example: prompt and thorough investigation of complaints.  

6. Monitoring and Evaluation – an example: ensuring compliance with any legislative changes and reviewing internal policies against recommendations. 

Investigation Into Preventing Sexual Harassment – Report Findings  

The Victorian Equal Opportunity and Human Rights Commission (the ‘Commission’) investigated industry compliance measures in accordance with the Guidelines and the Act in relation to the ‘positive duty.’  

Industry Risks  

The Commission determined that despite sexual harassment being a pervasive issue across Australia, certain industries are at a higher risk of sexual harassment occurring. Whilst the Commission identified heightened risks specific to the retail industry, these factors transcend to most industries in Australia.  

The increased usage of casuals, junior staffing ages, and multinational workers being unaware of their rights, all contribute to a higher rate of unreported and under-reported instances of sexual harassment.  

Other general industry-related risks can include –

• the type of hours worked (such as early morning/late night work),
• the fear of repercussions with career progression (especially if the workers are single-skilled or specialised),
• the gendered nature of work and staff retention can create an industrial cycle of sexual harassment if no preventative or proactive measures are taken by workplaces.  

Compliance Issues  

Despite the Act requiring employers to take as many measures as possible to prevent sexual harassment, precautionary measures such as workplace policies were deemed to have compliance gaps. Employers – and therefore subsequently employees – were unaware, or had little knowledge of, what a positive duty was.  

Some of the key findings – Baker’s Delight: 

• did not have a Prevention Plan;
• had not integrated the prevention of workplace sexual harassment into their work health and safety frameworks; 
• had not completed risk assessments specific to head office and company-owned bakeries; 
• did not have a central register to record matters of sexual harassment to monitor prevalence;  
• Bakers Delight Holdings’ sexual harassment policies were not comprehensive and did not contain all the elements listed in the Guideline; 
• within the investigation timeframe (2018 to 2021), Bakers Delight Holdings had not communicated the existence of workplace sexual harassment policies and complaint channels to employees; 
• Policies and complaint channels are not as easily accessible to bakery workers as they are to corporate office workers; 
• Within the investigation timeframe (2018 to 2021), Bakers Delight Holdings had not provided its employees with sexual harassment prevention training, or its managers (who are often the first point of contact) with training  to assist them to respond to workplace sexual harassment reports. 

Compliance Remedies 

To comply with the positive duty under the Act, best practice is to abide by following the Guideline’s six proactive steps.

Firstly, employers need to educate themselves and all levels of staff on behavioural identification to recognise instances of discrimination, sexual harassment, and victimisation. From there, employers can then provide training and informative resources to educate the broader network.

Secondly, employers should ensure that they have policies or procedures in place, and if so, they should be reviewed periodically to maintain compliance with any legislative change or organisational recommendation. Policies must clearly state and align with the responsibility of a ‘positive duty’ relating to prevention of sexual harassment.

Thirdly, supplying an adequate and well-equipped complaints channel for workers is extremely beneficial for matters to be dealt with efficiently and confidentially. This should be made readily accessible to all staff. A centralised complaints register must accompany this, facilitating ongoing oversight.

Fourthly, an employer can undertake risk assessments to assist in the prevention of sexual harassment, such as conducting pre-employment checks and seeking employee feedback via company surveys.  

Overall, the minimum standards all businesses should employ is ensuring –

• a comprehensive and accessible sexual harassment and complaints policy is in place,
• regular and adequate preventative and response training is provided for all staff and
• an accessible and clear complaints channel is provided for employees to utilise.  

Franchisee and Franchisor Responsibilities

The report also had a look at the responsibility of franchisors and franchisees. Many ER Strategies clients are in franchising, so there is a misconception that, especially in franchise networks, the Head Franchisor has more responsibility than franchisees.

Whilst the Franchisor is measured against the ‘positive duty’ under the Act, the Report found that there was an overlap of roles and responsibilities to prevent and respond to sexual harassment.

• Training: The Head Franchisor is to supply e-learning training systems and requirements for franchisee owners to undertake all training. The franchisee is to then train all franchise workers.
• Response: The Head Franchisor is to provide guidance and assistance in investigating complaints of sexual harassment if requested. However, the franchise owner is the first port-of-call when responding to reports within their workplace.
• Policy Implementation: The Head Franchisor can provide resource templates for sexual harassment policies which franchise owners can then use. Franchise owners must then ensure that the sexual harassment policy is effective and accessible to all workers.

Recommendations  

Whilst the Act and its positive duty obligations only directly concerns Victorian businesses, every employer regardless of jurisdiction can implement best practice measures to prevent sexual harassment from occurring. The following recommendations can assist with being as compliant, if not more than Victorian businesses.

Head Franchisor – How to Be Proactive, Not Reactive

• Implement a ‘Prevention Plan’ into the broader work health and safety framework.
• Assist Franchise Networks in conducting risk assessments to reduce and prevent sexual harassment and to provide an overall safer workplace. Examples of which include reference checks, adequate supervision where younger staff are rostered and CCTV.
• Keep a record of all complaints relating to sexual harassment. The register can then identify trends in certain locations or amongst certain employees.
• Ensure sexual harassment policies are comprehensive and in line with the Guideline’s minimum standards.

Franchise Networks – Best Practices to Be Proactive  

While franchise networks are not subject to the positive duty under the Act, there are best practice measures to ensure compliance with other legislation relating to sexual harassment.

• Aside from implementing a prevention plan, establishing efficient complaint channels for employees is paramount.
• Complaint channels should be documented in the Company’s sexual harassment policy, which is to be accessible to all employees and regularly communicated by management.
• Employees should also receive comprehensive prevention and response training to sexual harassment, including refresher courses. This training extends to management, which are the direct receivers of complaints and report writing.