AWARE - SEXUAL HARASSMENT & SEXUAL MISCONDUCT UNIT

Weir Consulting (National) (WEIR) has developed an AWARE unit to provide training and support to prevent sexual harassment in the workplace, modify entrenched behaviours and deliver services to address sexual harassment complaints.  AWARE benefits from the wisdom of Nia Elovaris, Senior Consultant, whose background includes Deputy Manager of the Specialist Sex Offences (SSOU) and prosecutions with the Victorian Office of Public Prosecutions.  Having Nia dedicated to co-ordination and delivery of the AWARE team, combined with our employment law, human resources and public administration expertise provides a service to businesses’ that adapts to need and circumstance.  This is especially the case for serious sexual misconduct allegations that require the right advice at the right time.

WEIR is also mindful of the impact of how complaints are managed, the need to accommodate employee wishes regarding their complaint, provide referral to adequate support services and important considerations for progression. 

Read on for more information about a training and complaint management program tailored for your organisation.

If you are currently managing a sexual harassment or sexual misconduct complaint, please get in touch with Nia Elovaris or Amanda Harvey for help and guidance about WEIR’s AWARE service. 

What is sexual harassment?

Every Australian employee has the right to a safe physical and online workplace that is free from sexual harassment. Yet one in three employees (33%) have experienced workplace sexual harassment in the last 5 years.  Notwithstanding the right to work safety, 68% of all sexual harassment occurs at work.  

There is no singular definition of sexual harassment. Its broad application is assessed by the impact the alleged behaviour has on an individual, not by the intent or motive of the person responsible for the behaviour.   

Despite legislated protection in the Commonwealth Sex Discrimination Act 1984, workplace sexual harassment remains prevalent and underreported.  Employers nowadays have a positive obligation to eliminate it whilst balancing their duty to manage the associated health and safety risks to employees and the organisation.  

How a workplace creates a safe working environment and responds to incidents of sexual harassment varies as widely as the conduct and success in doing so. With a focus on prevention over cure, key areas of organisational focus should include: 

  • Adequate education to raise awareness of sexual harassment  
  • Understanding the cultural landscape 
  • Formalising an effective sexual harassment policy
  • Providing induction and regular ongoing policy training 
  • Identifying measures to monitor policy compliance  
  • Appropriate complaint handling process 

Sexual Harassment Law 

Sexual harassment law is governed nationally by the Sex Discrimination Act 1984 (Commonwealth) (SDA), protections in the Fair Work Act 2009 and corresponding state legislation.   Anti-discrimination and work health and safety (WHS) laws prohibit such conduct at the state and territory level. 

The Fair Work Commission is Australia’s national workplace relations tribunal responsible for administering the Fair Work Act 2009.   

Definition of Sexual Harassment  

The SDA defines sexual harassment as an unwelcome sexual advance, request for sexual favours or other unwelcome conduct of a sexual nature. Examples include: 

  • suggestive jokes or comments 
  • leering or staring 
  • unwanted invitations to go out on dates 
  • inappropriate physical contact (unwelcome touching) 
  • sexually explicit pictures, posters, emails or SMS text messages 
  • requests for sex 
  • unnecessary familiarity (deliberately brushing up against a person)  
  • insults or taunts of a sexual nature  
  • intrusive questions about a person’s private life or body.  

For the unwelcome conduct to be sexual harassment, there must exist a reasonable possibility that the person being harassed would feel offended, humiliated or intimidated by the behaviour. A single incident can amount to sexual harassment and extends to persons indirectly exposed to or witnessing unwelcome conduct. 

Sexual Harassment vs Sexual Assault

Where an employee raises concerns of unwelcome physical conduct of a sexual nature, feels they have been coerced or pressured into sexual activity or claims sexual assault, caution must be used. This includes indecent exposure, touching and groping, stalking and most seriously, rape. These concerns step into criminal territory and may require Police involvement before an employer takes any step.   

When an employee raises these concerns, they should be advised of the ability to report the matter to Police.  No step should be taken prior to Police intervention and assessment of the matter, beyond assisting the employee to carefully document what has happened.  If you fail to let Police involvement take precedence where the employee chooses to make a Police report, you may contaminate evidence or enable the destruction of evidence.   

NO workplace allegation should refer to sexual assault unless secondary to a criminal conviction.  Sexual misconduct is the civil terminology used to describe serious sexual harassment amounting to those examples above.    

Sexual Harassment and Sexual Misconduct  

Workplace sexual harassment is a known workplace danger that can cause psychological and physical harm. Employers are obligated to manage the health and safety risks of workplace sexual harassment.   A failure to identify and eliminate risks of workplace sexual harassment may also amount to discrimination and other claims for penalties and damages.  

Sexual harassment and sexual misconduct complaints may warrant disciplinary investigation into allegations of serious misconduct.  Where substantiated, disciplinary action for serious misconduct may be justified. 

Sexual Harassment Statistics 

Sexual harassment statistics indicate that sexual harassment in Australia is exceedingly gendered, with half of all adult women (53%) and a quarter of all adult men (25%) having experienced at least one incident of sexual harassment in their lifetime. This gender disparity widens in the context of workplace sexual harassment with its impact felt socially and financially.  

  • 68% of sexual harassment takes place at work
  • 1 in 3 people (33%) have experienced sexual harassment at work in the last five years
  • 97% of sexual harassment cases are non-physical
  • Nearly 4 out of 5 (79%) harassers are men
  • Less than 17% of victims make a formal report or complaint

Underreporting – the vulnerable victim  

Victims of workplace sexual harassment experience further vulnerability because it occurs at work. The feared professional consequences of reporting act as a deterrent. Will the victim be believed? How will the victim be perceived and treated after reporting?  Will career progression options later become limited? Will employment remain secure? Concerns may also arise over what, if any, consequences the offender may experience.  

Under-reporting can result from workplace culture, a lack of understanding of workplace rights, fear of reprisal or the offender holding organisational power. The size of a workplace and whether a complainant can remain anonymous are also barriers to reporting.  WEIR has a service option where an anonymous reporting system can capture information, provide employees with information about their rights and options, support them with Police intervention and with ways to raise their concerns with their employer.  The service ensures complainants know their concerns can be addressed in different ways; some do not require disclosure of identity where prevention and training are the desired outcome, rather than disciplinary action.  This service also supports the rights of complainants, facilitates protected disclosures, and communicates rights to protection against victimisation.  This process is very mindful of what information is necessary to also ensure the rights of any person accused of wrongdoing to proper allegations and particulars.    

To learn more about our reporting services and helpline offerings, please get in touch with Amanda Harvey.

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