How can you prevent sexual misconduct occurring at work? Two legal experts share their top seven tips to make the workplace safe and free of sexual misconduct.

Sexual misconduct in the workplace continues to be extremely topical and reported widely by the Australian media. Following, among other things, the Sex Discrimination Commissioner’s 2020 Respect@Work Report, the Commonwealth Government very recently announced legislative reforms including: 

• Amendments to the Fair Work Act 2009 (Cth) to more clearly empower employers to dismiss perpetrators of sexual harassment by clarifying that sexual harassment can be conduct amounting to a valid reason for dismissal; and that the definition of ‘serious misconduct’ includes sexual harassment as a type of behaviour that can justify summary dismissal; 
• Extending the anti-bullying jurisdiction under the Fair Work Act to cover sexual harassment, enabling the Fair Work Commission to make “stop the sexual harassment orders”; 
• Amendments to the Sex Discrimination Act 1984 (Cth) to ensure greater alignment with work health and safety laws, to make the system for addressing sexual harassment in the workplace easier for employers and workers to navigate, and to clarify pathways to commence proceedings for sexual misconduct
• Amendments already introduced into the Senate which provide for paid leave for those experiencing miscarriage, designed to assist with rebalancing gender inequality in the workplace.  

Below are some practical recommendations that employers can adopt to ensure their workplaces are safe and free from sexual misconduct.

1. Review internal training and policies

Policy and training information needs to be up to date, resonate with your workforce, reflect the expectations of the organisation and wider community, and be in accordance with HR best-practice. To achieve this, ensure your policies address the following points: 

• Express statements are made that sexual misconduct is unlawful and unacceptable. 
• Policies apply to all persons in the workplace, especially managers and leaders. 
• Use clear definitions of sexual misconduct, including relevant, contemporary examples. 
• Acknowledge that gender inequality drives sexual misconduct.  
• Provide information about internal and external reporting mechanisms and support structures. 
• Listen to all complaints without bias and treat them seriously.
• Investigation procedures should prioritise the wellbeing, protection and safety of the complainant. 

Assurances that all persons who report misconduct will be protected from victimisation and retaliation

2. Roll out a reinvigorated training program 

To provide best practice training, we recommend that organisations: 

• Include a clear message from the leadership that sexual misconduct is not tolerated.
• State that sexual misconduct is against the law. 
• Make the training regular and appropriate to the audience (literacy levels, language spoken, inclusive and accessible language), including using language inclusive and accessible, and accommodating the particular needs of the workforce, including women, men and gender-diverse/non-binary workers. 
• Consider delivering training separately to groups of men and women, before assembling the groups together to reflect on their insights and learnings.
• Provide scenarios, including examples based on the industry and workplace environment. 
• Contain information about the effects of such acts upon victims, and about the consequences for the perpetrators and those that may know about the misconduct and have not done anything to bring it to the attention of the employers. 
• Include information about how to raise a concern, make a complaint, or get support. 
• Focus on management at all levels from direct-line managers and supervisors to executives and the board.
• Consider how other workers who may not traditionally have been included in workplace training programs, including casual staff, contractors, consultants or expert advisers, customers and labour hire staff, could be provided with adequate sexual misconduct education. 

3. Allocate responsibility to executives, management and the board 

Traditionally, responsibility for managing and preventing sexual misconduct has sat with HR.  However, a key theme of the Australian Human Rights Commission Report ‘Equality Across the Board: Investigating in Workplaces that Work for Everyone‘ was shifting the responsibility from HR to management and implementing changes to shape culture and attitudes towards sexual misconduct from the top-down.

Responsibility can be allocated to executives and senior management for managing and preventing sexual misconduct by including it in their KPIs or as an accountability that they have to report to the Board or shareholders.  

Ensuring that it is an issue to be included in Board reports also ensures there is transparency at the highest level of the business.  

4. Create a risk matrix 

Safe Work Australia’s ‘National Guidance Material for Preventing Workplace Sexual Harassment’ sets out that managing the risk of sexual misconduct in the workplace should be treated in the same way as any other work, health and safety risk.  

We recommend creating a risk matrix to identify and assess the risk areas in the workplace, for example, groups of employees in which there is a lack of gender diversity or locations in the workplace that have little visual oversight.

5. Implement an anonymous employee wellbeing audit 

An anonymous employee wellbeing audit is a great way to gather information for your risk matrix and develop a plan to minimise the risk of sexual misconduct.  Free from the possibility of victimisation, retribution or career-impact, employees may be more likely to identify problem areas and blind-spots within the business.

Anonymous audits also mean that, in some cases, action can be taken to address issues without the need for a formal investigation.  If issues are raised anonymously, management can, for example, implement more supervision in a certain area of the workplace, monitor email interactions or remove certain employees from the area.  

6. Create a bystander policy and training

This can empower everyone in the workplace to take responsibility for preventing sexual misconduct.  Such a policy, along with training, can help people become allies against sexual misconduct.  

It should also provide assurances that no bystander reports will result in victimisation or retribution.  

7. Allocate contact officers or support persons within the business

HR will always play an important role in receipt and management of sexual misconduct complaints.

Managers should also be identified as “contact officers” or “support persons” for sexual misconduct matters.  This will likely assist some employees come forward with personal or bystander complaints.  Being able to raise sexual misconduct matters with a senior person that an employee is familiar with can help the employee feel supported and safe in making the complaint.  

A version of this article first appeared in the August 2021 edition of HRM magazine.

Preventative measures are always best, but what if there has already been an instance of sexual misconduct? AHRI’s short course on Investigating Workplace Misconduct is here to help. Book in for the next course on October 28.