Sexual Harassment in the Workplace – What all Employers should know
Author: Hannah Johnson | Consultant
Australia’s resources industry has been in the spotlight over recent months with reports of sexual harassment and its pervasiveness within the industry being seen at alarming rates. Kate Jenkins, Australia’s Sex Discrimination commissioner released a report stating that in 2020, approximate 40 percent of workers in the mining industry had experienced sexual harassment while at work.
However, this concerning number does not just apply to the resources industry. Sexual harassment is an issue witnessed across all Australian workplaces, industries, locations and levels of employment. The Australian Human Rights Commission stated that in 2018, one in three Australian workers had experienced sexual harassment in the workplace in the last five years, compared to one in five workers in 2012. The report also found that one in two (51%) Australians had been exposed to workplace sexual harassment either as a victim, bystander, or both.
What is sexual harassment in the workplace?
It is not the intention behind the behaviour that is relevant, but rather
the feelings of the person toward whom the behaviour is directed.
Sexual harassment in the workplace is any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes an individual feel offended, humiliated and/or intimidated.
Sexual harassment in the workplace may be deliberate and may include:
- Sexually graphic displays of pinups, calendars, cartoons or graffiti (including on screen savers or mobile phones)
- Written messages left on boards, desks or in emails
- Staring or leering at a person or at parts of their body
- Off-colour jokes, innuendo or verbal remarks
- Body contact, such as rubbing, pinching, patting or massaging
- Inferences regarding a person’s sexual morality
- Tales of sexual exploits
- Suggestive comments about a person’s appearance
- Invasive questioning and invasion of personal space
- Unwelcome or inappropriate SMS messages
- Indecent exposure
It is important to remember that what is seen as reasonable by one person could be viewed differently by another, making it important to be sensitive to these differences. It is not the intention behind the behaviour that is relevant, but rather the feelings of the person toward whom the behaviour is directed.
What legislation applies?
Sexual harassment is harmful and regardless of whether it occurs in the workplace or not, it is also unlawful.
There are several pieces of legislation that apply to sexual harassment, including work health and safety laws, discrimination and equal opportunity laws, workplace relations laws, workers’ compensation laws and criminal laws at Commonwealth, state, and territory levels.
The most prevalent Acts to be aware of are:
- Sex Discrimination Act 1984
- Occupational Safety and Health Act 1984 (the Act); and
- Work Health and Safety Act 1992 (Cth)
The Sex Discrimination Act makes unlawful, sexual harassment and sexual discrimination. The Occupational Safety and Health Act and the Work Health and Safety Act state that acts of violence, aggression and bullying are unlawful due to the effect on the safety and health of employees and others at the workplace.
Everyone in the workplace has a Duty of Care
Workers and others at the workplace also have a duty to take reasonable care of their own health and safety and to not adversely affect the health and safety of themselves or others. This includes following any reasonable instruction given to comply with a health and safety duty.
What are an Employers obligations and liabilities?
An employer must ensure, so far as is reasonably practicable, the health and safety of its workers. An employer who fails to maintain a safe workplace may be held liable under the common law or under the Work Health and Safety Act 2011 (Cth), or equivalent state or territory law.
Employers are liable under the Sex Discrimination Act if they cause, instruct, induce, aid or permit another person to engage in sexual harassment. This is known as accessory or ancillary liability. An employer is likely to have accessory or ancillary liability for sexual harassment if it was aware, or should have been aware, that sexual harassment was occurring or there was a real possibility that sexual harassment was occurring, and it failed to act.
Employers who fail to take reasonable steps to prevent the foreseeable risk of the physical and psychological harms of sexual harassment may be in breach of the obligation to ensure a healthy and safe work environment and safe systems of work.
Sexual harassment in the workplace is unfortunately prevalent but it is preventable.
Employees want to feel safe at work, and companies want to provide safe workplaces that a free from sexual harassment. WCA can help create a specific, compliant plan which may include training, systems, policy, procedural and culture change, in accordance with the company’s core values.
WCA Solutions recommends that employers take the following steps to manage the risk and create a safer place for all workers.
- Place it on the agenda and have the conversation starting with Board and Leadership Team level.
- Educate the workforce to address the drivers and behaviour.
- Set clear expectations and ensure all workers understand their duty of care with supporting policies.
- Establish an easy to follow and accessible process to ensure that all workers know how to respond if a worker experiences and or witnesses an incident.
For assistance to develop and implement a plan, simply call us on 08 9383 3293 to book a free confidential consultation or email [email protected].
Australian Human Rights Commission, 2021 https://humanrights.gov.au/sites/default/files/2020-10/sexual_harassment_in_australian_workplaces_-_australias_third_upr_2021.pdf