Board accountability and sexual harassment in the new regime

Seyfarth Shaw LLP

If it’s not already happening, Board room agendas will be making room for yet another compliance program.

We’ve said it before and it’s worth repeating: the bolstering of anti-sexual harassment laws will see workplaces adopt approaches akin to eliminating or minimising, so far as reasonably practicable, workplace health and safety risk. The positive duty demands “reasonable and proportionate” measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible. The duty will extend to conduct by third parties such as customers or clients – not unlike the extension of the work health and safety duty to workers and others. That said, satisfying the safety standard won’t necessarily meet the new positive duty.

The new regime will be supported by a regulator, the Australian Human Rights Commission (AHRC), with new investigative powers and compliance tools at its disposal. The AHRC will be able to investigate breaches, utilise investigative powers, issue compliance notices, seek Court-based compliance, and will lean on organisations to make enforceable undertakings directed at compliance.

The AHRC has also issued its compliance guidelines consistent with its statutory charter in a paper that runs for close to 100 pages with a separate Information Guide that runs to 60 pages.

Workplaces – and business leaders – will need to be across these expectations and develop appropriate plans. The plans in place today are unlikely to be sufficient in most cases. A policy and training will not be enough. Such guidance material is not dissimilar to the numerous codes of practices available from the various work health and safety regulators.

Seven standards are expected to be adopted. Of these “Leadership” is the first. Not surprisingly, this is about governance, setting the expectations, and providing the compliance oversight. Does this ring any bells?

As examples of the ways leaders might meet this challenge, they are expected to:

  1. Understand their obligations;
  2. Oversee preparation and response plans;
  3. Be visible in their commitment to safe, respectful and inclusive workplaces;
  4. Communicate expectations to workers and third parties;
  5. Ensure expectations are upheld; and
  6. Be responsible and accountable for meeting the positive duty.

Of these, the first (understanding obligations) is the logical starting point. Unless we know what is required of us, we cannot work out what needs to be done. Board briefings will be a necessary part of meeting the standard as will briefings across the leadership team, cascading down (just like we’ve come to expect in the workplace health and safety space). But this is just the beginning. The expectations on senior leaders include:

  • Reading the guidance materials;
  • Attending “quality education sessions”;
  • Maintaining current awareness;
  • Review relevant industry research about sexual harassment and related unlawful conduct;
  • Establish systems to monitor developments including best practice strategies;
  • Create/approve a specific document (“prevention and response plan”) capturing the measures taken, check if they are implemented, update as needed to ensure ongoing effectiveness, and set timeframes for review;
  • For large businesses, regular check ins e.g. having a standing agenda item of “compliance with the positive duty” in leadership/board meetings; and
  • Leading from the top, with internal and external communications flagging the importance of safe and respectful workplaces and elimination of unlawful conduct, including apologies to people who have experienced it in the past and specific commitments for improvements.

The guidelines also highlight a connection between the objectives of reducing risk and broader goals of gender equity. The guidelines state “All actions to implement the positive duty should contribute to achieving gender equity”. This interlinking of gender equity and sexual harassment reflects the recent changes made to the Workplace Gender Equality Agency (WGEA) reporting obligations, which will soon require employers to disclose details about sexual harassment prevention and response steps to the WGEA.

The AHRC guidelines rightly describe the new requirements as a “systemic shift” for businesses.

Senior leaders, boards and businesses will need to have this issue on their radar.

The work begins or continues.

We are preparing Board briefings to assist senior leadership on what’s expected of them and their organisation. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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