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Put your HEART into stamping out sexual harrassment
The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) recently released its report on an investigation that it conducted into Bakers Delight Holdings’ compliance with the positive duty to eliminate sexual harassment.
Bakers Delight Holdings was chosen because it is both a head franchisor and an employer in the retail industry both of which are regarded as high-risk environments. It wasn’t because specific complaints had been made against Bakers Delight Holdings but rather the company engaged with the regulator in the investigation.
What is a positive duty?
Under the Victorian Equal Opportunity Act 2010, employers in Victoria have a “positive duty” to take reasonable and proportionate measures to eliminate workplace sexual harassment.
The “positive duty” requires employers to take action to prevent sexual harassment, not just respond to it when it occurs.
Employers must take preventative measures regardless of whether a complaint has been made.
How did they assess compliance with the positive duty to prevent sexual harassment?
The used VEOHRC’s own Guideline on Preventing and responding to sexual harassment as the authoritative reference. This sets out 6 minimum standards for employers as follows:
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Standard 1: Knowledge Employers understand their obligations under the Equal Opportunity Act 2010 and have up-to-date knowledge about workplace sexual harassment. |
Employers understand the law relating to sexual harassment including their positive duty. | Employers understand the drivers and impacts of sexual harassment. | Leaders and supervisors know how to identify and respond to sexual harassment in the workplace. | |
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Standard 2: Prevention plan Sexual harassment is prevented through the development and implementation of an effective sexual harassment prevention plan. |
Employers have assessed what steps they will take to prevent sexual harassment, including measures in line with these standards, and have documented the plan. | Workers and their representatives have an opportunity to contribute to the development or revision of the plan. | Workers understand the plan (including relevant policies and procedures) and know where to find it. | Leaders have implemented the plan and are accountable for the commitments within it. |
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Standard 3: Organisational capability Leaders drive a culture of respect by building organisational capability |
Expectations of respectful workplace behaviour have been set and clearly communicated to workers. | Leaders model respectful workplace behaviour. | Employers have taken steps to ensure workers understand that sexual harassment and victimisation are against the law and will not be tolerated. | Employers encourage and support bystanders to act safely to respond to sexual harassment. |
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Standard 4: Risk management Employers have built a culture of safety and address risk regularly. |
Employers have regularly identified and assessed risk factors for sexual harassment, including by seeking feedback from workers. | Employers have recognised and treated sexual harassment as a work health and safety risk. | Employers have taken steps to minimise and control workplace risk factors. | Workers understand and are encouraged to use systems in place to address risk. |
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Standard 5: Reporting and response Sexual harassment is addressed consistently and confidentially to hold harassers to account, and responses put the victim-survivor at the centre. |
A fair and confidential reporting and complaints procedure is prepared in consultation with workers, with victims-survivors’ wellbeing prioritised. | Workers know how and where to make a complaint or report and are supported to do so. | Responses to complaints are timely and consistent, with proportionate disciplinary outcomes. | Workers are safe and supported through a complaints process, including through identifying and preventing victimisation. |
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Standard 6: Monitoring and evaluation Outcomes and strategies are regularly, reviewed, evaluated and improved. |
Employers regularly collect and assess reporting and complaints (and other relevant) data for trends, patterns and lessons to drive continuous improvement. | Employers regularly review and update sexual harassment prevention plans (eg annually) to drive continuous improvement. | Employers are transparent about trends, patterns and lessons with workers, boards and key stakeholders. | Workers have confidence that sexual harassment is being eliminated in their workplace. |
VEOHRC has stated that it believes that these guidelines are sufficiently authoritative to be used in court proceedings relative to the positive duty to prevent and respond to sexual harassment.
What were their findings?
Not surprisingly, they found gaps in their compliance settings and practice, as they no doubt would in most (if not all) organisations.
Following on from that investigation, Bakers Delight Holdings has entered into a compliance agreement with VEOHRC through which it has committed to:
- developing a sexual harassment prevention plan
- developing sexual harassment training for all Bakers Delight employees and training to assist managers to respond to reports of sexual harassment
- updating sexual harassment policies and procedures for responding to sexual harassment
- regular communication to Bakers Delight employees about how they can make a complaint of sexual harassment
- developing a central register of reports of sexual harassment.
What does this mean for you?
The report and the Compliance Agreement with Bakers Delight Holdings sets a new benchmark on what organisations need to be doing to meet their positive duty.
While the focus has been on franchisors and the retail industry which should take particular note, the message is clear and transferable for any employer in any workplace setting.
Just as with the positive duty in relation to mental health and wellbeing and elimination of psychosocial hazards, we need to get real about getting the right behaviours in our workplace and eliminating the wrong ones.
Our HEART model is specifically designed to generate cultural improvements in organisations:
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