The New Model Code of Practice on Sexual and Gender-Based Harassment: What it Means for Small and Medium Businesses!

Introduction

Sexual and gender-based harassment is a pervasive issue in today's workplaces, impacting employees and businesses alike. Addressing this problem is not just a moral imperative; it's also a legal obligation for employers. Recently, Safe Work Australia unveiled the Model Code of Practice: Sexual and Gender-Based Harassment, offering practical guidance to businesses on how to effectively eliminate or minimise the risk of such harassment in the workplace. The new model code should also be read in conjunction with the previously released Model Code of Practice - Managing Psychosocial Hazards at Work (anything that could cause psychological harm e.g. harm someone's mental health).

Understanding Sexual and Gender-Based Harassment

The Model Code provides the following definitions:

Sexual harassment

Sexual harassment is any unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, in circumstances in which a reasonable person, having regard to all the circumstances, would anticipate the possibility that the person harassed would be offended, humiliated or intimidated.

Sex- or gender-based harassment

Sex- or gender-based harassment is any unwelcome conduct of an offensive or demeaning nature by reason of the person's gender, sex, or sexuality, in circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Discrimination

Discrimination happens when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics. This can include direct or indirect discrimination on the basis of sex, gender or sexuality.

Hostile working environments

A hostile work environment is an environment that is offensive, intimidating or humiliating to a person because of their sex or characteristics linked to their sex.

The Code also provides definitions for:

·         Gendered Violence

·         Misgendering or deadnaming

·         Intersectional Harassment

Impacts of Harassment

The consequences of sexual and gender-based harassment are extensive, affecting both victims and organisations. These effects include diminished job satisfaction, emotional and cognitive distress, behaviour al changes, physical injuries, illnesses, and severe stress-related conditions. Businesses must take these issues seriously and proactively work to prevent them.

Fostering a Respectful Organisational Culture

Organisational culture comprises shared values, behaviours, attitudes, and beliefs among all staff. Cultivating a culture that values diversity and inclusivity is essential for preventing sexual and gender-based harassment. Here's how a business can shape such a culture:

1. Displaying and Removing Inappropriate Images: Ensure that inappropriate images or materials are not displayed in the workplace, such as calendars or advertisements. Actively removing such content sends a clear message.
2. Policy Alignment: Performance management, recruitment, and promotion policies and practices should emphasise respectful behaviour and diversity.
3. Integration into your WHS Management System (WHSMS): A WHSMS comprises policies, procedures, and plans tailored to your business's specific needs, size, and industry. Each business is responsible for developing its own WHSMS, so it's not a one-size-fits-all approach. Don't have one, or unsure if yours is up to date? It's time for a review
4. Uniforms and Advertisements: should avoid sexualising workers unless it is integral to their role.
5. Taking Reports Seriously: Reports of harassment should be taken seriously and addressed promptly in accordance with organisational policies and procedures. A clear process of how complaints will be managed as well as providing support to employees is essential.
6. Inclusive Social Activities: Social activities should be inclusive and appropriate. Organisational policies should reflect the desired culture and set clear standards for behaviour .
7. Empowering Workers: Workers should be empowered to refuse, restrict, or suspend service when others fail to comply with expected behaviour  standards.
8. Regular Discussions: Leaders should engage in regular discussions about health and safety issues, including sexual and gender-based harassment.
9. Training: Ensure training is provided to all staff on the nature, drivers, and impacts of harassment both during initial induction and regular refresher training.

Leadership in Creating a Safe and Respectful Workplace

Leadership plays an additional and pivotal role in fostering safe and respectful workplaces that proactively manage the risks of sexual and gender-based harassment. Effective leadership in health and safety extends beyond mere rhetoric; it involves concrete actions. Here are key considerations for leaders:

1. Understanding the Issue: Leaders should take the time to understand the prevalence, nature, and drivers of sexual and gender-based harassment in their workplace. This understanding forms the foundation for effective risk management.
2. Awareness and Communication: Effective communication processes should be in place to ensure leaders are aware of workplace risks. Maintaining open lines of communication helps leaders stay informed.
3. Resource Allocation: Leaders should ensure that the necessary resources and governance arrangements are in place to address sexual and gender-based harassment effectively. Commitment to prevention should be reflected in organisational priorities and communicated effectively.
4. Integration of Policies and Procedures: Aligning human resources policies with health and safety strategies is crucial. Policies related to recruitment, performance management, misconduct, promotion, accountability, and support should work hand in hand with the goals of WHS risk management.
5. Setting the Standard: Leaders set the standard for acceptable behaviour within an organisation. They should model attitudes and behaviour s that demonstrate respect for all workers and actively address inappropriate conduct.
6. Duties of Officers: Business Owners and Senior leaders, such as company Directors and Senior Management, have a duty of due diligence to ensure compliance with WHS laws. This includes effective consultation, knowledge acquisition, understanding of operations, resource provision, incident response, and verification of resources and processes.

The Importance of understanding your requirements and getting expert advice

Engaging the services of someone experienced in both HR and WHS is a critical component of effectively addressing sexual and gender-based harassment in the workplace. While traditionally responsibility for understanding and implementing practices around reducing the risk of sexual harassment, gender equality, anti-discrimination and managing psychosocial hazards  has sat with HR, these issues now cross over both HR and WHS needing a new way to review and mitigate risks and implement practical and compliant policies, procedures and training. 

It may be tempting for small businesses to download generic policies and procedures from the internet or attempt to handle these matters internally even if you don’t have an experienced or qualified HR or WHS resource in-house, however the expertise of an experienced consultant can make a significant and lasting impact, not to mention reduce your risk of non-compliance, complaints and hefty fines. Here's why it's crucial to seek professional assistance:

1. Tailored Solutions: Every workplace is unique, and one-size-fits-all policies and procedures may not adequately address specific risks and dynamics within your organisation. An experienced consultant can conduct a thorough assessment of your workplace's specific needs and develop tailored solutions that align with your business's culture and structure.
2. Compliance Assurance: Consultants stay updated with the latest legal requirements and industry best practices. By collaborating with a consultant, you can ensure that your policies and procedures are fully compliant with relevant laws, regulations, and codes of practice, such as the Model Code of Practice on Sexual and Gender-Based Harassment.
3. Proactive Risk Management: Consultants possess expertise in identifying potential risks and hazards associated with harassment, often uncovering issues that may elude in-house personnel. Their proactive approach can help prevent incidents before they occur, saving your business from potential harm and litigation.
4. Conflict Resolution Expertise: In the event of a harassment complaint or dispute, an experienced consultant can provide valuable guidance on handling investigations, mediations, and conflict resolution processes. They can also take over those complex investigations if you don’t have staff trained in these areas and they can assist with ensuring fairness and transparency throughout these sensitive matters.
5. Employee Training and Education: Consultants can deliver specialised training sessions for your employees and managers, equipping them with knowledge about what constitutes harassment, how to prevent it, and how to respond effectively. Such education fosters a culture of awareness, respect, and inclusivity in your organisation.
6. Cost-Effective Solutions: While hiring a consultant might appear as an additional expense, it can ultimately lead to cost savings for your business. You can also engage consultant on an adhoc basis, for a project or for a few hours a month making them more cost effective than hiring an in-house resource if you are a small or medium business. Effective prevention and early intervention can significantly reduce potential legal costs, lost productivity, and reputational damage associated with harassment incidents.
7. Confidentiality and Neutrality: Consultants are skilled at maintaining confidentiality and neutrality, which can be challenging for internal HR staff who may have personal relationships with employees involved in harassment incidents. This ensures a fair and confidential process for all parties involved.
8. Continuous Improvement: Consultants can assist you in establishing a system for continuous improvement in your harassment prevention efforts. They conduct regular audits, review policies and procedures, and recommend necessary adjustments to maintain a safe workplace.

Conclusion:

Addressing sexual and gender-based harassment in the workplace is a complex task that requires a multifaceted approach. It should be integrated into your broader Work Health and Safety Management System (WHSMS), your HR Frameworks and practices and ultimately your workplace culture.

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