In a much publicised address at the National Press Club this week, Brittany Higgins and Grace Tame have called for a positive duty to be placed on employers to prevent sex discrimination, sexual harassment and victimisation.
Ms Higgins said: ”If you can model the correct behaviour within your workplace, it drives it forward and it puts the onus onto other businesses in and across Australia to actually take the issue seriously.”
This is a significant step beyond what Australian employers are currently legally obliged to do.
Last September, the federal parliament passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021. That legislation essentially did 3 things:
- Introduced definitions of “sexually harass” and “sexually harassed at work”
- Created a new or expanded jurisdiction for the Fair Work Commission to allow it to make orders to stop sexual harassment at work just as it could already issue orders ti stop bullying at work”
- Including sexual harassment in the definition of serious misconduct which justifies summary dismissal
What has been the experience with stop bullying orders?
In the last 6 years, the FWC has received between 721 and 820 stop bullying applications each year. That is representative of approximately 0.006% of the Australian workforce which is extremely low given that Safe Work Australia’s own research puts the proportion of Australian workers who experience bullying at around 10% and others cite significantly higher numbers. According to Heads Up, it is estimated that bullying costs Australian organisations between $6 billion and $36 Billion per year.
So what the FWC sees is (at best) about 0.06% of the people who are experiencing bullying. That is literally just the tip of the iceberg and clear evidence that the jurisdiction is having little impact on workplace culture.
Will the experience with stop sexual harassment orders be any different?
Last November, the Fair Work Commission’s new jurisdiction for applications for orders to stop sexual harassment came into operation.
As noted above, it is to operate in much the same way as the stop bullying jurisdiction and we couldn’t reasonably expect it to have any more impact on the prevalence of sexual harassment than that jurisdiction has had on the incidence of bullying.
The first application made for stop sexual harassment orders was made against two workers of a neighbouring business. It was dismissed in December for want of jurisdiction because that neighbouring business moved out so there was no longer a threat of the applicant having contact with or being sexual harassed by them.
This decision confirms that there needs to be an ongoing risk of bullying or sexual harassment to obtain a stop order from the FWC.
Why doesn’t it work?
Ms Higgins and Ms Tame are absolutely right that change will only occur in real terms if employers take responsibility for changing organisational behaviour rather than just having control measures for mitigation of risk.
In our workplaces, we need to do much more than just apply the traditional WHS risk management approach of having a policy, telling people about it, requiring them to follow it and disciplining them if they don’t. That doesn’t change language, it doesn’t change culture and it doesn’t change behaviour.
The “Stop Bullying” and “Stop Sexual Harassment” processes are really not designed to prevent improper conduct – rather they are there to stop it after it has already been occurring.
They are also totally reliant on an aggrieved worker making a complaint to the Fair Work Commission.
Most workers wouldn’t know that those jurisdictions exist let alone have the confidence to access them.
We also know that most instances of bullying or sexual harassment go unreported and that, for many who are economically reliant on the wage that they bring home every week, rocking the boat with a complaint of bullying or sexual harassment isn’t an attractive prospect.
And then there are those who are able to find somewhere else to work and they just move on to get away from the problem.
How having a HEART helps
If you want to really address these behavioural problems in your workplace, our HEART model can help:
H is for HONESTY:
Accept what statistics tell us – that some form of sexual harassment is more than likely happening in your workplace and/or to your people. Take a good hard look at your workplace to identify any practices or behaviours that might not be quite right and think about your people to identify those who are perhaps likely to be perpetrators (whether knowingly or not) or victims.
E is for ENGAGEMENT:
Engage everyone in the organisation in the conversation through appropriate policies and procedures, training and promotions and building gender equality and respectful behaviour into your management processes, performance management and KPIs. Also have the conversations with those people who have been identified as risks and support them in areas that they need to work on and don’t permit exceptions.
A is for ACCOUNTABILITY:
Hold everyone accountable for playing their part in the desired culture ensuring that the principles are applied to all individuals and teams and with no bystanders. Where improvements are needed for anyone, make that a corrective action for them to take on board as part of their performance plan.
R is for REVIEW:
Ensure that there is constant vigilance and that you regularly consult and check in with people to verify what is working well and where there might be opportunities for improvement. Implement a coaching model which includes regular catch ups and discussion of relationships, values and behaviours – how they are going, what is working well and what could be better.
T is for TRUST:
Create an environment that is psychologically safe for people to put their hands up and seek an ear or a hand with any challenges that they are having – with someone else’s behaviour or their own. Ensure that you are responsive and people believe in the integrity of both the process and management.
The only way that we are going to eliminate sexual harassment and bullying from our workplaces is to take responsibility ourselves to change the attitudes and behaviours that drive them.
Governments can’t do it, unions can’t do it, institutions like the Fair Work Commission can’t do it. The only ones who can do it are the people in those workplaces and it is really up to all of us to play our part in that.
Leaders need to take a stand and show that they have the HEART to take on the challenge of transforming their workplace cultures to be respectful, welcoming, inclusive and psychologically safe for everyone in reality and not just on paper.
Our PosWork Better Workplace Projects are a great place to start and we would be happy to help.