Guide for preventing workplace sexual harassment - for publishing.pdf

Preventing workplace sexual harassment National guidance material JANUARY 2021 Disclaimer Safe Work Australia is an Australian Government statutory agency established in 2009. Safe Work Australia includes Members from the Commonwealth, and each state and territory, Members representing the interes...

Preventing workplace sexual harassment National guidance material JANUARY 2021 Disclaimer Safe Work Australia is an Australian Government statutory agency established in 2009. Safe Work Australia includes Members from the Commonwealth, and each state and territory, Members representing the interests of workers and Members representing the interests of employers. Safe Work Australia works with the Commonwealth, state and territory governments to improve work health and safety and workers’ compensation arrangements. Safe Work Australia is a national policy body, not a regulator of work health and safety. The Commonwealth, states and territories have responsibility for regulating and enforcing work health and safety laws in their jurisdiction. ISBN 978-1-76114-075-4 (Online PDF) ISBN 978-1-76114-076-1 (Online DOCX) Creative Commons With the exception of the Safe Work Australia logo, this copyright work is licensed under a Creative Commons Attribution 4.0 International licence. To view a copy of this licence, visit creativecommons.org/licenses In essence, you are free to copy, communicate and adapt the work for non-commercial purposes, as long as you attribute the work to Safe Work Australia and abide by the other licence terms. Contact information Safe Work Australia | [email protected] | www.swa.gov.au PAGE 2 OF 22 Contents Contents .............................................................................................................................. 3 Introduction ......................................................................................................................... 4 What is workplace sexual harassment?........................................................................... 4 What might sexual harassment look like?........................................................................ 5 Who is affected by sexual harassment? .......................................................................... 6 Impacts of sexual harassment ......................................................................................... 6 Preventing workplace sexual harassment ........................................................................ 8 Sexual harassment laws ................................................................................................. 8 Duties under WHS laws .................................................................................................. 8 Managing risks ................................................................................................................ 9 Identifying hazards and assessing risks .......................................................................... 9 Controlling the risks ....................................................................................................... 12 Responding to reports of sexual harassment................................................................. 19 Referral to other agencies ............................................................................................. 19 Confidentiality................................................................................................................ 20 Resources and support services ..................................................................................... 21 PAGE 3 OF 22 Introduction This Guide provides information for persons conducting a business or undertaking (PCBU) on preventing and responding to sexual harassment in the workplace. Sexual harassment is a workplace hazard that is known to cause psychological and physical harm. Managing the risks of sexual harassment should be part of your approach to work health and safety. This Guide is aimed at preventing sexual harassment between workers, supervisors and managers at all levels, as well as managing the risk of third-party sexual harassment from customers, clients and others. • Information on managing the risks of workplace violence and aggression, such as violence from clients, customers other workers and gendered violence can be found in the Guide: Preventing workplace violence and aggression. • Information on preventing and responding to workplace bullying can be found in the Guide: Preventing and responding to workplace bullying. • Information on managing risks to psychological health and safety can be found in the Guide: Work-related psychological health and safety: A systematic approach to meeting your duties. • Information on family and domestic violence can be found in the Information sheet: Family and domestic violence at the workplace. The information in this Guide is based on the model Work Health and Safety (WHS) laws. These laws have not been implemented in all jurisdictions, although other Australian WHS laws have similar duties. For information on the WHS laws in your jurisdiction see Safe Work Australia’s website. What is workplace sexual harassment? Sexual harassment is any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances where a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated1. This Guide addresses sexual harassment that is carried out in a workplace. Under WHS laws, a ‘workplace’ means a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work. This means sexual harassment can happen: • • • • • at a worker’s usual workplace where a worker is working remotely, including if the person’s workplace is their home in a place where the worker is undertaking work at a different location (such as a client’s home) where the worker is engaging in a work-related activity such as conferences, training, work trips, work-related corporate events of if you host a work-related social activity like a Christmas party, or by phone, email or online (such as through social media platforms). Sexual harassment may be perpetrated by various people including an employer, supervisor, co-worker, client, patient or customer. For example, a care worker might be 1 Legal definitions of ‘sexual harassment’ may vary in each state and territory. PAGE 4 OF 22 harassed by a client when on a home visit. It can also involve people who work for other businesses and share the same workplace, for example sub-contractors at the same work site, or a delivery person and retail worker. In this Guide, sexual harassment perpetrated by people who are not workers, such as clients or customers, is referred to as third-party sexual harassment. Sexual harassment is not always obvious, repeated or continuous. Unlike bullying, which is characterised by repeated behaviour, sexual harassment can be a one-off incident. Sexual harassment can also be a behaviour that while not directed at a particular person, affects someone who is exposed to it or witnesses it (such as overhearing a conversation or seeing sexually explicit posters in the workplace). The Guide: Preventing workplace violence and aggression provides information on preventing and responding to workplace violence and aggression, such as providing a safe physical work environment, safe systems of work and what to do if a violent incident occurs. Your workers may experience sexual harassment when they are not at work from risks which arise at the workplace. For example, if a worker receives offensive text messages after work from a colleague or client. You can take action to reduce these risks in the workplace. For example, not requiring employees to use their private mobile phones or personal social media accounts to engage with clients. If you have management or control of a workplace, you have additional duties under WHS laws, which include taking measures to ensure staff can enter and leave work safely. You may also have obligations under other laws such as anti-discrimination and workers’ compensation laws. You may wish to seek independent advice on your WHS duties and obligations under other laws. What might sexual harassment look like? Sexual harassment can be overt, covert or subtle and include: • • • • • • • • • • • • • • • • • • unwelcome touching, hugging, cornering or kissing inappropriate staring or leering suggestive comments or jokes using suggestive or sexualised nicknames for co-workers sexually explicit pictures, posters or gifts circulating sexually explicit material persistent unwanted invitations to go out on dates requests or pressure for sex intrusive questions or comments about a person's private life or body unnecessary familiarity, such as deliberately brushing up against a person insults or taunts based on sex sexual gestures or indecent exposure following, watching or loitering nearby another person sexually explicit or indecent physical contact sexually explicit or indecent emails, phone calls, text messages or online interactions repeated or inappropriate advances online threatening to share intimate images or film without consent, and actual or attempted rape or sexual assault. Acts such as indecent exposure, stalking, sexual assault and obscene or threatening communications (e.g. phone calls, letters, emails, text messages and posts on social media) may be offences under criminal law and should be referred to Police as well as managed under WHS laws. PAGE 5 OF 22 Overt forms of sexual harassment may be easier to identify and are not tolerated in many workplaces. However, more subtle forms like sexist remarks, crude language and an overall workplace culture that is degrading or intimidating may not be taken as seriously and can be more difficult to identify. However, these forms of sexual harassment can be just as harmful as overt forms of sexual harassment. Sexual harassment is also a form of gendered violence. Gendered violence is any behaviour directed at any person or that affects a person because of their sex, gender or sexual orientation, or because they do not adhere to socially prescribed gender roles, that creates a risk to health and safety. For example, this includes violence targeted at someone because they identify as lesbian, gay, bisexual, transgender, intersex, queer or asexual (LGBTIQA+). The Guide: Preventing workplace violence and aggression provides information on preventing and responding to workplace violence and aggression, including gendered violence. Who is affected by sexual harassment? While anyone can experience sexual harassment, there are certain groups of people who are more likely to experience it. In 2018, the Australian Human Rights Commission survey on sexual harassment found that both men and women experience sexual harassment. However, women are significantly more likely to experience it than men and are more likely to suffer negative impacts on their mental health, self-esteem, self-confidence and career progression. It also found that factors which may increase the likelihood of a worker experiencing sexual harassment include: • • • • • • • workers under 30 years of age workers who identify as lesbian, gay, bisexual, transgender, intersex, queer or asexual (LGBTIQA+) Aboriginal or Torres Strait Islander workers workers with a disability workers from culturally and linguistically diverse backgrounds migrant workers or workers holding temporary visas, and people in insecure working arrangements e.g. casual, labour hire or part-time work. The risk of experiencing harm from sexual harassment rises when a person faces multiple forms of discrimination. Attributes such as gender, sexuality, migration status, race, disability and literacy can combine (intersect) and increase a person's vulnerability. These factors can also make workers less likely to report sexual harassment. Impacts of sexual harassment Sexual harassment can cause physical and psychological harm to the person it is directed at and anyone witnessing the behaviour. The severity of the impact of sexual harassment can vary. These impacts can have significant social and economic costs for workers, their family, their organisation and the wider community. Sexual harassment can lead to: • • • • feelings of isolation, social isolation or family dislocation loss of confidence and withdrawal physical injuries as a result of assault stress, depression, anxiety and post-traumatic stress disorder (PTSD) PAGE 6 OF 22 • • • illness such as cardiovascular disease, musculoskeletal disorders, immune deficiency and gastrointestinal disorders e.g. as a result of stress negative impacts on a person’s job or career, and suicidal thoughts. PAGE 7 OF 22 Preventing workplace sexual harassment Sexual harassment laws There are a number of laws in Australia which deal with sexual harassment. • Sexual harassment is covered by WHS laws as it is a workplace hazard that creates physical and psychological risks to health and safety. • At the national level, sexual harassment is unlawful under the Sex Discrimination Act 1984 (Cth). Sexual harassment is also prohibited by state and territory anti-discrimination laws. o • The Australian Human Rights Commission publishes guidance to help employers understand and meet their legal obligations under the Sex Discrimination Act. See the resources and support services at the end of this Guide. Some acts such as indecent exposure, stalking, sexual assault and obscene or threatening communication (e.g. phone calls, emails, text messages and posts on social media) may also be offences under criminal law. All of these laws work together to address sexual harassment to create safer, healthier, more respectful and productive workplaces. Duties under WHS laws A PCBU has a duty under WHS laws to eliminate risks to health and safety of workers and other persons so far as is reasonably practicable. If it is not reasonably practicable to eliminate risks, they must be minimised so far as is reasonably practicable. This means you must do all that you reasonably can to manage the risk of sexual harassment occurring in the workplace (see our Guide: How to determine what is reasonably practicable to meet a health and safety duty). • A ‘worker’ under WHS laws is anyone who carries out work in any capacity for your business, including employees, contractors, subcontractors, outworkers, apprentices, trainees, work experience students and volunteers who carry out work. • A ‘workplace’ under WHS laws means a place where work is carried out for your business and includes any place where a worker goes for work, for example a client’s home. This also includes places where there is no work being carried out at a particular time, for example a department store does not cease to be a workplace when it is closed overnight. Under WHS laws you must also, so far as is reasonably practicable: • • • • provide and maintain a work environment that is without risk to the health and safety of workers provide adequate and accessible facilities for the welfare of workers to carry out their work give workers the necessary information, instruction, training or supervision to do their job safely and without risks to health, and consult with health and safety representatives (HSRs) and workers about health and safety issues that are, or are likely to be, directly affecting them. PAGE 8 OF 22 You must also consult, co-operate and co-ordinate with other businesses you work with, or share premises with, about how they will discharge their WHS duties when they interact with your workers. To do this you should exchange information and work together in a co-operative and co-ordinated way so risks are eliminated or minimised so far as is reasonably practicable. For example: • talk to other businesses you interact with about measures to prevent sexual harassment e.g. suppliers, commercial landlords, the onsite food vendors or contractors • talk to other businesses that share your worksite or premises about how to manage shared areas such as bathroom and kitchen facilities to ensure these areas are safe for workers, and • talk to other businesses that share your worksite or premises about what you will do if a worker is being sexually harassed at the worksite or premises. Officers, such as company directors, must exercise due diligence to ensure the business or undertaking complies with the WHS Act and Regulations. 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. Workers also have duties under WHS laws. Workers must take reasonable care of their own health and safety while at work, and the health and safety of others who may be affected by what they do or do not do. While at work, workers must also comply with any reasonable instructions, policies and procedure given by the PCBU, including policies and procedures to prevent and respond to sexual harassment. Managing risks You must do whatever you can to eliminate or minimise the health and safety risks of sexual harassment in the workplace so far as is reasonably practicable. This process is known as risk management and involves: • • • • identifying the hazards assessing the associated risks implementing control measures to eliminate or minimise risks, and regularly reviewing control measures to ensure they remain effective. You must do these things in consultation with your workers and any HSRs if you have them. More information about the risk management process can be found in the Code of Practice: How to Manage Work Health and Safety Risks and the Code of Practice: Work Health and Safety Consultation, Co-operation and Co-ordination. Identifying hazards and assessing risks Sexual harassment is now recognised as a systemic risk, with industry, environmental and individual risk factors present in every workplace. To identify the potential for sexual harassment, you need to gather information about the hazards in your workplace and assess the associated risk. Factors that can increase the likelihood and risks of sexual harassment include: • • low worker diversity e.g. the workforce is dominated by one gender, age group, race or culture power imbalances e.g. workplaces where one gender holds most of the management and decision-making positions PAGE 9 OF 22 • • • • • • • workplaces organised according to a hierarchical structure e.g. Police and enforcement organisations, or medical and legal professions a workplace culture that supports or tolerates sexual harassment, including where lower level (but still harmful) forms of harassment are accepted e.g. small acts of disrespect and inequality are ignored and reports of sexual harassment or inappropriate behaviours are not taken seriously - this conduct can escalate to other forms of harassment, aggression and violence use of alcohol in a work context, and attendance at conferences and social events as part of work duties, including overnight travel workers are isolated, in restrictive spaces like cars, working at residential premises, living in employer provided accommodation, working from remote locations with limited supervision, or have restricted access to help and support working from home which may provide an opportunity for covert sexual harassment to occur online or through phone communication worker interactions with clients, customers or members of the public (either face-to-face or online) which may give rise to third-party sexual harassment, and poor understanding among workplace leaders of the nature, drivers and impacts of sexual harassment. It is important to consider that workers may be more likely to experience sexual harassment because of their sex, gender, sexuality, age, migration status, disability and literacy. The risk of experiencing harm rises when a person faces multiple forms of discrimination. When identifying hazards and gathering information to ensure you have appropriate controls in place, it is important that you consult with all of your workers, HSRs and health and safety committees if you have them. Drawing on the experience and knowledge of workers is more likely to result in the identification of all hazards and better risk management solutions. For example, talk to your workers about when and where they feel at risk of experiencing sexual harassment when they perform their work, including when they are away from a fixed workplace e.g. to provide in-home services or make deliveries. It may be easier to identify hazards if: • • • managers regularly talk to workers about workplace concerns and sexual harassment is recognised as a WHS issue managers and workers attend training on sexual harassment and have a good understanding of what sexual harassment is and the relevant workplace policies, and workers feel safe and comfortable to raise concerns about sexual harassment or other workplace conduct issues. To identify hazards, it may be useful to: • • • • walk-through and assess the physical work environment e.g. are there areas with limited natural surveillance like meeting rooms or store rooms, areas that restrict movement (such as where workers would need to touch each other to move past) or prevent workers maintaining their personal space, and posters or pictures on display that may be offensive assess the online working environment if relevant e.g. the security settings, use of social media for work purposes, how workers interact with each other, managers and third-parties consider work systems and practices to identify risks of exposure e.g. working after hours with minimal supervision, in restrictive spaces like cars or in isolated locations, regular contact with third-parties, worker’s uniforms, marketing and advertising campaigns observe the culture of the workplace to see whether sexual harassment is accepted as normal behaviour e.g. sexual or gendered jokes and teasing are part of daily working life and workers may take on this behaviour to participate in the workplace culture without thinking about the impact on others PAGE 10 OF 22 • • • • • • • • observe how leaders, managers, supervisors, workers and others interact e.g. are there poor relationships or do workers avoid being around certain people if appropriate, carry out confidential anonymous worker surveys about the workplace culture, if workers have experienced sexual harassment, or behaviours that have caused discomfort and have the potential to escalate identify trends that may highlight areas of concern or affected workers e.g. think about whether a worker is performing differently, suddenly taking more sick leave, isolating themselves, not attending work functions, or if a work group has had a number of resignations conduct worker exit interviews and surveys consult with HSRs and worker representatives, if you have them, about whether concerns have been raised by workers review grievance data such as formal and informal complaints about concerning behaviours and workers’ compensation claims review industry data on sexual harassment prevalence rates and identify industry characteristics that may affect your workplace, including through consultation with employer bodies and worker representatives if you have them, and identify the worker demographics of your workplace to identify power disparities in working relationships e.g. gender, role, reporting lines, seniority, locations, tenure, job security, pay and other diversity characteristics. You should not rely only on formal reports as a lack of reports does not mean that sexual harassment is not happening. The Australian Human Rights Commission 2018 sexual harassment survey showed that only 17% of workers who experienced sexual harassment reported the conduct. It may simply mean that people are not reporting sexual harassment because they do not know how, do not feel it is serious enough or do not feel safe and supported to do so (guidance on how to encourage reporting is provided below). Third-party sexual harassment Sexual harassment at the workplace may also be committed by a third-party, such as customers, clients, patients or members of the public. Although it may be difficult to control the actions of third-parties, you must still eliminate or minimise the risks of third‐party sexual harassment occurring at your workplace so far as is reasonably practicable. It may be useful to: • • • • • talk to your workers about when and where they feel at risk of experiencing sexual harassment when they perform their work e.g. serving customers at night or working at a client’s home walk-through and inspect the physical work environment for hazards and risks e.g. low visibility in service areas that limits natural surveillance, amenities are in an isolated location or workers use shared amenities with customers consider work practices to identify risks of exposure e.g. working alone or at night consider whether the workplace’s uniform requirements are appropriate and safe for the work required, and observe customer behaviour and how people interact with workers. After identifying the hazards at your workplace, you should assess the risks to health and safety in consultation with your workers. To do this, think about the following. • • • Does the workplace culture, physical work environment, work tasks, how work is performed or the people interacting with workers make sexual harassment more or less likely to occur? Has sexual harassment happened before, either in this workplace, workplaces nearby or workplaces similar to yours? If it has happened, how often does it happen? What are the potential impacts? Will it cause psychological or physical injury or illness? PAGE 11 OF 22 Controlling the risks Sexual harassment is a common and known source of harm. You must put control measures in place to eliminate or minimise risks, so far as is reasonably practicable. The risk of sexual harassment at your workplace can be managed by taking a proactive approach that involves: • • • • • • • • • • • • examining the existing control measures in your health and safety management system to prevent sexual harassment and considering how to introduce improvements providing a safe physical and online work environment providing safe work systems and procedures for your workers implementing workplace behaviour policies and practices that promote respectful and inclusive workplace culture from all levels of worker putting measures in place to prevent third-party sexual harassment from customers, clients and members of the public addressing unwanted or offensive behaviour early encouraging workers to report sexual harassment and providing safe, confidential and clear avenues to do so, including anonymous reporting responding to reports of sexual harassment in a way that focuses on supporting the worker and is sensitive to any trauma to minimise further risk to health and safety applying appropriate consequences for sexual harassment misconduct, such disciplinary action consistent with other workplace misconduct, and accountability for managers to create a safe and respectful workplace free from sexual harassment using information, instruction, training and supervision to support the overall prevention strategy using recruitment and promotion strategies that create a diverse workforce, and monitoring and reviewing the effectiveness of control measures. Deciding what control measures are reasonably practicable to prevent sexual harassment will be different for each workplace. You need to consider and weigh up all relevant matters, including (but not limited to): • • • • • the likelihood of workers and other people at the workplace being exposed to sexual harassment the degree of harm that might result e.g. sexual harassment can result in serious psychological injuries or involve physical assault what you know about how to eliminate or minimise the risk of sexual harassment e.g. providing private and secure change rooms availability and suitability of ways to eliminate or minimise the risk, and costs associated with the available ways of eliminating or minimising the risk. When thinking about control measures, it is important that you consult with your workers, HSRs and health and safety committees if you have them. Engaging workers and others in developing controls will likely result in measures that are more effective and more widely used. You must take the views of workers most affected into account when making decisions and advise them of your decision. You should also consider whether the control measures you introduce create new hazards or risks to health and safety. Physical work environment and security The physical work environment can affect the likelihood of sexual harassment occurring between workers, supervisors or managers and the ability to respond to those incidents. You should consider: • Facilities and amenities that give privacy and security, such as private and secure change rooms and toilets. PAGE 12 OF 22 • • • • • • Ensure the layout of the workplace provides good visibility of work areas and avoids restrictive movement e.g. consider how furniture and partitions are arranged. Improving natural surveillance in areas such as offices, store rooms and other segregated areas e.g. using semi opaque glass or screens. Ensure there are no areas where workers could become trapped, such as rooms with keyed locks. Providing communication systems like phones, intercoms or duress alarms. Ensuring internal and external lighting provides good visibility, including in car parks. Ensuring a safe working environment for workers during travel, including when workers are in a vehicle together, at conferences, off site, at client or customer premises and any other location where work is performed. Safe work systems and procedures Your health and safety management systems, policies and procedures should be part of the overall sexual harassment prevention strategy. You should consider: • • • • • • • • Implementing sexual harassment workplace policies which set out standards of behaviour and procedures for what a worker should do if they experience or see sexual harassment and how they can report it, including where sexual harassment occurs at a remote location or online. Ensure these procedures are well understood by all worker (e.g. through training, providing policies electronically or on noticeboards) and are implemented consistently across all areas of the business and all levels of worker. Providing regular supervision and communication with workers, particularly when workers are at remote locations or working from home. Avoiding sexualised uniforms and ensure clothing is practical for the work undertaken. Encouraging workers to keep records and screen shots if inappropriate behaviour occurs online or through phone communication. For work-related corporate events, reinforcing workplace policies and what behaviours are expected of workers, ensuring that responsible service of alcohol policies are followed and that workers know who to turn to if they experience or witness inappropriate behaviour at the event. Regularly evaluating work systems and practices, in consultation with workers and their representatives, to see if they contribute to circumstances where sexual harassment is more likely to occur. Acting in a consistent manner when dealing with reports of sexual harassment, including providing sufficient and appropriate feedback to workers who have raised concerns. Collecting de-identified details of all sexual harassment complaints, including those that are not pursued formally by the complainant, to help you identify systemic issues at the workplace. Power imbalances and inequality may increase the risk of sexual harassment, so you may also consider implementing policies and strategies to address gender inequality, lack of diversity and power imbalances. In some circumstances, workers or their HSRs have the right to refuse to carry out or stop unsafe work. They have this right if there is a reasonable concern that the worker will be exposed to a serious risk to their health and safety from an immediate or imminent hazard. If a worker stops work because it is unsafe, they need to tell you as soon as possible. The worker must also then be available to carry out suitable alternative work, including doing other tasks that they are trained or able to do, or performing work from another location, such as working from home. In most circumstances, the HSR will need to consult with you before a worker is directed to stop work. More information on providing a safe work environment and work systems to prevent harassment can be found in the Guide: Preventing workplace violence and aggression. PAGE 13 OF 22 Workplace policies As an employer (PCBU), it is your responsibility to set the behaviour standards that provide a safe workplace for all workers. Your workplace should foster a healthy and respectful work culture where sexual harassment is not tolerated. All levels of worker need to model and enforce acceptable behavior standards, including the PCBU, managers and supervisors. A workplace policy can help set clear expectations about behaviours at the workplace and during work-related activities and provide important information for workers, supervisors and managers. You may have separate policies or one policy which covers several WHS issues. A workplace policy dealing with sexual harassment may include: • • • • • • • • • • • • a clear statement that sexual harassment will not be tolerated wherever and whenever it takes place, including from third-parties such as clients or customers set workplace standards about behaviours, attitudes and language that disrespects or excludes people based on gender, gender identity, sexual orientation or assumptions about dominant gender stereotypes and socially prescribed gender roles define sexual harassment and recognise that sexual harassment is unlawful examples of types of behaviours that are and are not allowed address the appropriate use of social media and technology the control measures to prevent sexual harassment relevant to your workplace the duties of all levels of worker, including managers and supervisors, and your duties as the employer the consequences of breaching the policy what a worker should do if they experience or witness sexual harassment how workers can report sexual harassment the process the organisation will undertake when receiving a report or dealing with a concern, including keeping people safe while the matter is dealt with, options for how a complaint can be addressed and when an external or independent third-party may be engaged to investigate, and the support services available and referral information for all people involved. An example of a workplace sexual harassment policy has been developed by WorkSafe New Zealand and more information can be found from the Australian Human Rights Commission. Everyone can, and should, play a role in preventing sexual harassment. Workplace policies should be developed in consultation with your workers and their representatives, and all workers must be made aware of the policies and behaviour standards expected of them. Third-party harassment Sometimes sexual harassment is committed by people who are not employed in your business, such as clients, customers, patients or members of the public. This can occur face-to-face, on the phone or online. Whether sexual harassment is committed by your workers or other people, you have a duty to eliminate or minimise workplace risks to health and safety so far as is reasonably practicable. Consider implementing control measures such as: • • Providing security personnel, video surveillance and communication systems like phones, intercoms or duress alarms. Refusing service or banning persons with a history of sexual harassment from the workplace e.g. patrons at pubs or clients at health services. If service is necessary, such PAGE 14 OF 22 • • • • • • • • • • • • • • • as for medical care, put in place additional measures to protect workers and others, such as ensuring workers are not isolated. Preventing public access to the area when people are working alone or at night e.g. via a security card or code or asking guests to leave the room while workers clean. Using furniture, barriers, screens or high counters to separate workers from the public. Ensuring internal and external lighting provides good visibility, including in car parks. Improving natural surveillance in work areas e.g. spacing out furniture, using clear or semi-opaque glass. Avoiding situations where workers can become trapped e.g. moving furniture and partitions, fix doors to remain open while cleaning a room, and avoiding situations where workers might be restricted in moving closely past customers. Providing safe access to facilities, or private facilities for workers to use that are separate from customers. Avoiding the need for workers to work alone where possible e.g. working in pairs, closing the business with security personnel present, or providing a safe escort to a worker’s transport. Providing workers with a safe place to retreat to avoid harassment. Implementing responsible service of alcohol policies and practices. Clearly communicating to clients and customers that any form of sexual harassment is not tolerated e.g. in service agreements or contracts, and signs at the workplace Training workers in how to deal with difficult customers or clients, when and how to escalate issues to senior workers and procedures to report sexual harassment. Training supervisors and managers in how to deal with difficult customers or clients and their management duties in addressing sexual harassment. Establishing procedures for dealing with unacceptable behaviour from customers or clients and how workers and managers can respond. Tell workers about their right to cease unsafe work. See the Guide: Preventing workplace violence and aggression for information about how to provide a safe physical work environment, safe work systems and procedures to prevent violence and aggression from third-parties. Addressing unwanted or offensive behaviour early Early intervention and reporting unwanted or offensive behaviour is often an effective way to stop sexual harassment. The workplace culture, behaviour standards, policies and procedures that you implement to prevent sexual harassment will play a key role in addressing inappropriate behaviour early, and ideally before it escalates. You should provide training to workers, supervisors and managers on how to prevent sexual harassment, how to respond if they experience or witness sexual harassment and how to report it. Your workplace policy should provide workers with a range of accessible and user-friendly options to address unwanted or offensive behaviour early, which may include: • • • • • self-management if the person feels safe and confident approaching the other person this usually involves telling the other person the behaviour is not welcome and asking for it to stop anonymous reporting bystander action seeking support and assistance within the organisation e.g. a co-worker, supervisor, manager, human resources officer, HSR or worker representative if you have them, and seeking external support. PAGE 15 OF 22 Bystander-intervention training may be provided to all workers to encourage and support bystanders to intervene, but only when they feel safe to do so. Training will help bystanders know what to do when they see signs of a problem, such as by verbally discouraging unwanted behaviours and reporting the behaviour if it does not cease. Encourage reporting of sexual harassment The Australian Human Rights Commission survey in 2018 found that the majority of people who were sexually harassed did not make a formal report or complaint. Workers might not report sexual harassment because: • • • • • • it is seen as just ‘part of the job’ or the work culture and nothing can be done about it they believe only the most serious incidents should be reported they think reports will be ignored or not handled respectfully and confidentially they fear they will be blamed or that reporting may expose them to additional harm, discrimination or disadvantage (such as losing their job or negative impacts on their reputation or career) a perpetrator may have organisational power over them (such as a manager or supervisor) or is in a position of influence, such as a client, or they do not understand or know their workplace rights, what behaviour should be reported or how to report it, particularly if workers are culturally or linguistically diverse. Workers should be encouraged to report sexual harassment and behaviour that causes concern. You can do this by: • • • • • • providing workers with a range of accessible and user-friendly ways to report sexual harassment informally, formally, anonymously and confidentially talking to workers to make sure they understand how to report sexual harassment or behaviours of concern, their right to representation and the support, protection and advice available training key workers (contact persons) to receive reports of sexual harassment and give support and advice helping workers understand the processes of how reports of sexual harassment will be dealt with providing supportive, consistent and confidential responses to reports, and implementing systems to prevent retaliation and victimisation of people involved in reports of sexual harassment. Information, instruction, training and supervision You should provide your workers with information, instruction, training and supervision to support your overall strategy for preventing sexual harassment. Training, instruction and information should be provided to workers at all levels of an organisation and be easily accessible. It must be provided in a form that can be understood by all workers, for example workers who are culturally or linguistically diverse. Depending on the size and nature of your business, this may be done by: • • • • • verbally informing all workers about the workplace policies displaying the policy on notice boards publishing the policy on the staff intranet or emailing it to workers distributing brochures or displaying posters, and providing training on preventing sexual harassment, including through induction processes for new workers. PAGE 16 OF 22 Training and information should cover: • • • • • • • • • • • what is sexual harassment - it is important that all workers have a strong understanding of the variety of behaviours that can constitute sexual harassment certain forms of sexual harassment (e.g. indecent exposure, stalking, sexual assault, and obscene or threatening communication) can be criminal offences that may need to be reported to Police drivers of sexual harassment, including gender inequality, and cultural and systemic drivers the impact of sexual harassment and victimisation, including physical harm, psychological harm and economic impacts workplace policies, including acceptable standards of behaviour, consequences for breaches of the policy and ensuring people involved in complaints will not be victimised understanding diversity, including the concepts of gender, gender-identity, sexuality, disability and cultural and linguistic diversity control measures implemented at the workplace to prevent sexual harassment educating workers about appropriate use of social media and technology communication skills and how to respond to sexual harassment, including strategies for addressing inappropriate behaviour bystander-intervention training so people know what to do if they witness sexual harassment, and how to report sexual harassment and the support available. It is important that information is provided regularly and reinforced in daily systems of work, similar to education about other WHS risks. Brochures and other educational material on sexual harassment can be obtained from the Australian Human Rights Commission, state or territory anti-discrimination agencies and union and employer organisations. Manager training It is important that managers are given the tools to: • • • understand their obligations to prevent sexual harassment create a safe, respectful workplace and an environment where workers feel safe to report concerns, and know exactly what to do if they see, experience or have a worker approach them about sexual harassment. Sexual harassment training for managers can: • • • • • • provide managers with a better understanding of what sexual harassment is, its drivers and its impacts help identify hazards and risk factors in their workplace help managers identify sexual harassment and behaviours of concern and how to intervene early and prevent escalation provide ideas about how to prevent sexual harassment and solve problems they may not have known how to address in the past set out how to respond to reports of sexual harassment and how to support workers uncertainty about what to do can cause a manager to delay taking action, or lead them to avoid taking action all together cover third-party sexual harassment e.g. when the harasser is not a worker but is in a position of influence, such as a client PAGE 17 OF 22 • • help set up an effective process on how to carry out confidential investigations, including advice on when an external or independent third-party may need to be engaged to investigate, and provide ideas on how to implement corrective measures. Contact officer training Some organisations offer one or more contact officers as a first point of contact for someone who may be experiencing or witnessing sexual harassment in your organisation. Contact officers can provide information and support to workers and apply your organisation’s policies and procedures when a complaint is raised. You should provide training for workers who are or may become contact officers for sexual harassment concerns or complaints. Training can help provide contact officers with the knowledge and skills to: • • • • • • understand the nature and impacts of sexual harassment apply effective communication and listening skills, including trauma-informed approaches to sexual harassment explain options to resolve complaints explain the legal protections and support available to workers determine when a concern or complaint should be escalated, and consider the challenges that contact officers might face and how to manage these, including potential impacts on the mental health of contact officers. Reviewing risk control measures Risk management is an ongoing process. You should review your risk management systems regularly to ensure you continue to eliminate or minimise the risk of sexual harassment, so far as is reasonably practicable. A review should occur: • • • • • after addressing a report of sexual harassment - this can help identify and address any underlying factors that may increase the risk of sexual harassment occurring, whether you need to adjust control measures and whether response procedures worked the way they were supposed to when workers or their representatives indicate that risk control measures are ineffective or not as effective as they should be when an HSR or health and safety committee request a review when a significant change at the workplace has or may have introduce new or different hazards and risks, including the work environment, work tasks, systems, processes or procedures, and at regular intervals e.g. annually. When reviewing control measures, consider whether they can be improved by implementing new control measures, making changes to the physical work environment, work procedures, workplace policies or if additional training is needed. Ensure any control measures implemented do not introduce new hazards or risks to health and safety. Keeping records on reports of sexual harassment and actions taken can be useful in analysing trends, identifying systemic risk factors, and can be an important source of information for boards and governing bodies. Records with identifying information must be kept confidential. PAGE 18 OF 22 Responding to reports of sexual harassment If a worker or anyone at your workplace is in immediate danger, call 000 Sexual harassment is best managed by responding as soon as possible after suspecting or becoming aware there is a problem. When dealing with reports of sexual harassment, you should: • • • • • • • • act promptly and ensure the safety of the workers involved consult with the complainant to determine whether they wish to pursue their complaint formally, informally or in some other way, and what support they require clearly communicate the process to everyone involved (including both sides of the complaint and witnesses if appropriate) protect all people involved from victimisation e.g. being bullied or intimidated tell all people involved what support and representation is available maintain confidentiality treat everyone involved fairly, and ensure all actions and decisions are documented and information is stored securely. The Australian Human Rights Commission provides good practice guidelines for internal complaint processes in the guide Ending workplace sexual harassment: A resource for small, medium and large employers and the Respect@Work: Community Guide. Incident management policies and procedures should be developed and implemented in consultation with workers and their representatives if you have them. After an incident, you should review your risk management systems to identify and address factors that may have increased the risk of sexual harassment, evaluate what worked and what could be improved. Irrespective of the action taken in relation to a specific report, use data about reports of sexual harassment to review and update your workplace prevention and response measures. Sometimes sexual harassment may escalate to a more aggressive or violent incident at the workplace. For information on how to respond to these types of incidents, see the Guide: Preventing workplace violence and aggression. Referral to other agencies There are a range of avenues for workers to obtain support and information on sexual harassment. When dealing with a report of sexual harassment and discussing referral to other agencies, it is very important to respect the complainant’s desired outcome and preferred way of managing the complaint. Workers should be supported if they wish to contact the: • • • • Australian Human Rights Commission state or territory anti-discrimination agency state or territory WHS regulator, or Police for matters that may be criminal offences. PAGE 19 OF 22 Depending on the circumstances, even if a matter has been referred to Police or another agency, the WHS Regulator may still be involved. For example, you may need to notify your state or territory WHS regulator if the incident is a ‘notifiable incident’ (see our Factsheet: Incident notification for more information). You may also decide to contact the WHS Regulator or another agency for assistance and information. This will assist you to assess whether your existing risk controls to prevent sexual harassment are effective, if your response procedures worked the way they were supposed to and whether new risks have been identified that also need to be managed to prevent future incidents. Confidentiality It is important that workplaces develop supportive environments where workers feel safe to discuss sexual harassment issues. All workers should be made aware of any mandatory reporting obligations that you have as the employer, either under state and territory laws or as part of the worker’s employment contract, that may limit confidentiality. To create an environment where workers feel confident to talk about their experience of sexual harassment, you should be able to demonstrate that such information will be kept private and confidential. Confidentiality is important because workers may not be willing to talk about their experience without knowing it is confidential. Any information about a worker’s experience of sexual harassment is sensitive and you should take all reasonable steps to ensure any information disclosed by workers is kept confidential and secure. Discuss with your workers how this information will be handled and how they can maintain the confidentiality of all parties involved. In most cases, de-identified information about a complaint or issue should be used to improve your prevention and response initiatives. Ensuring confidentiality should not prevent the parties involved from seeking support, such as through an employee assistance program, or bringing along a support person or representative to meetings. Sexual harassment in the workplace can be a complex issue and you may wish to seek further advice from your employer organisation or a WHS and employment law professional. PAGE 20 OF 22 Resources and support services Australian Human Rights Commission 1800Respect www.humanrights.gov.au 1800 737 732 1300 656 419 or 02 9284 9888 Fair Work Commission www.fwc.gov.au 1300 799 675 Our Watch https://www.ourwatch.org.au www.1800respect.org.au Sexual assault support services www.humanrights.gov.au/our-work/sexdiscrimination/list-sexual-assault-services Lifeline www.lifeline.org.au 13 11 14 Beyond Blue www.beyondblue.org.au 1300 224 636 ReachOut https://au.reachout.com/ Safe Work Australia resources • Preventing workplace sexual harassment – guidance for small business • Workplace sexual harassment – advice for workers • Guide: Preventing workplace violence and aggression • Guide: Work-related psychological health and safety: A systematic approach to meeting your duties • Guide: Preventing and responding to workplace bullying • Guide: Dealing with workplace bullying – a worker’s guide • Model Code of Practice: How to manage work health and safety risks • Model Code of Practice: Work health and safety consultation, co-operation and coordination Australian Human Rights Commission • Ending workplace sexual harassment: A resource for small, medium and large employers • Effectively preventing and responding to sexual harassment: A Code of Practice for Employers • Know the line • Respect@Work: Sexual Harassment National Inquiry Report (2020) PAGE 21 OF 22 • Respect@Work: Community Guide to the Sexual Harassment National Inquiry Report (2020) WHS resources • WorkSafe Victoria: Work-related gendered violence including sexual harassment • WorkSafe New Zealand: Sexual harassment policy • WorkSafe New Zealand: Sexual harassment – Advice for businesses • WorkSafe New Zealand: Sexual harassment – Advice for workers Other government resources • Privacy – Office of the Australian Information Commissioner • eSafety Commissioner - Adult cyber abuse PAGE 22 OF 22