Stamping out sexual harassment

SAFE TO WORK SAT DOWN WITH SAFETRAC TO DISCUSS WHAT CONSTITUTES SEXUAL HARASSMENT – AND WHAT COMPANIES CAN DO TO PREVENT IT IN THE WORKPLACE.

Sexual harassment in the resources sector has been mentioned in the news, as workplace claims continue to be reported. Power imbalances caused in part by gender diversity issues are prevalent within the mining industry and cultural shifts are required to modify behaviours. But challenges in making these changes remain. Safetrac director and chief executive officer Deborah Coram spoke to Safe to Work about what sexual harassment is and how companies can prevent it.

Can you provide an overview of what constitutes sexual harassment?

Under the definition provided by the Respect@Work legislation, sexual harassment is any behaviour that is sexual in nature and that a reasonable person would anticipate would make another person feel offended, humiliated or intimidated.

While people are familiar with concepts such as unwelcome physical contact, other forms of sexual harassment such as verbal abuse, harassment and displays of offensive materials may be concepts some people and companies might not be so familiar with.

What are some less obvious forms of sexual harassment?

A sexual comment, innuendo, joke, insult or slur can all be classed as sexual harassment.

Intrusive questions about a person’s private life or physical appearance that made them feel offended, or someone staring or leering inappropriately at someone in a way that made them feel intimidated can also be classified as sexual harassment.

It can also include less offensive displays of sexual behaviour. A picture of a person posing in a provocative position displayed for everyone to see could be viewed as conduct that makes someone feel uncomfortable.

The definition of sexual harassment is broad enough that any behaviour that could cause offence, humiliation or intimidation to someone is now classified as sexual harassment.

Defining sexual harassment is difficult as the behaviour is not about a specific person being harassed; it’s behaviour that could lead a reasonable person feel harassed.

Sexual harassment can be committed by anyone in the workplace. It could be a supervisor or manager, but not necessarily. It could be a colleague, a customer or a client.

What does the law say regarding sexual harassment?

There are a number of laws that prohibit sexual harassment in workplaces, including the Sex Discrimination Act 1984, the Gender Equality Act 2020, Work Place Health and Safety Laws, and the Fair Work Act 2009

Combined, these legislative codes make clear that all workplaces are required to take positive steps to prevent sexual harassment and other forms of sex-based discrimination from occurring in the workplace.

As sexual harassment has now been classified as a psychosocial risk, its prevention is essential in order to maintain a safe workplace.

Where sexual harassment events are reported to occur in a workplace, if that workplace did not take adequate steps to prevent that event from occurring, the workplace could be liable under multiple codes of legislation.

What about sexual harassment within the mining industry?

Recent reports, including the Enough is Enough report and the Respect@ Work: Sexual Harassment National Inquiry Report by the Australian Human Rights Commission, clearly showed that sexual harassment has long been, and continues to be, prevalent across the mining industry.

A survey by the Mining Energy Union showed that 43 per cent of women and 18 per cent of men said they have experienced or witnessed some form of sexual harassment within the last 12 months.

We know that workplace sexual harassment and discrimination occur in almost all sectors and occupations in Australia and around the world. However, the mining industry is particularly highlighted as a high-risk industry due to its male-dominated workforce, isolated environments and patriarchal hierarchical structures.

What has become clear from various reports is that the issues of reported sexual harassment are not isolated incidents of misconduct, but rather organisational matters which stem from power imbalances caused from male-dominated cultures and environments where gender inequality has created a breeding ground for sexual harassment.

What is the new Respect@Work bill and what will it mean for businesses?

The Australian Human Rights Commission (AHRC) has been granted powers of enforcement to enforce the positive duty obligation imposed under the Sex Discrimination Act

Essentially, they have been granted the powers of a standard regulator and will be looking at what steps organisations are doing or have done to eliminate sexual harassment from the workplace.

The AHRC will have the ability to enquire and report on issues of systemic unlawful discrimination or suspected systemic unlawful discrimination. They have highlighted the mining industry as one that they will likely investigate.

The new AHRC powers will come into effect 12 months after the Respect@Work Act received Royal Assent. This effectively gives companies up until December 2023 to be able to demonstrate that, in the event they are investigated by the AHRC, they understand and comply with the positive duty to prevent sexual harassment.

It is therefore imperative that mining companies are taking all reasonable measures to stamp out sexual harassment in their businesses and actively prevent it from occurring.

What are the consequences of noncompliance?

The consequences and cost of not addressing workplace sexual harassment are far-reaching.

They include consequences for the perpetrator such as job loss, reputational harm, career damage and potential exposure to personal liability.

For the workplace, they include being vicariously liable to their workers for any sexual harassment that occurs in the workplace.

Consequences include fines, penalties and damages, reputation damage, short-term and long-term shareholder value, difficulty in staff attraction and retention, loss of productivity and increased operational costs such as insurance premiums.