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Building a culture of respect: Workplace sexual harassment – never part of the job video transcript

Video transcript of Building a culture of respect: Workplace sexual harassment – never part of the job.

Watch the video of the Comcare webinar.

Natalie Bekis

Good morning and welcome to this Comcare webinar. I’m Natalie Bekis, general manager of Comcare Strategic Partnerships and Engagement Group, and I will be your host for today. Firstly, I would like to acknowledge the traditional owners of the lands on which we are all meeting virtually today. I am in Melbourne, so I would like to acknowledge the Wurundjeri People of the Kulin nations, the traditional custodians of this land. I would also like to pay respect to indigenous Australian and Torres Strait Islander elders, past, present and emerging, to acknowledge the contribution they make to this nation, and extend that respect to all indigenous Australians and Torres Strait Islander people attending this event.

Comcare’s webinar brings together a wide variety of people from across the Comcare scheme, and from those, others across the work health and safety jurisdictions, including workplace leaders, human resources, health and safety practitioners and safety representatives and, of course, workers. Comcare hosted a series of webinar in 2020, with great feedback from those who came along. We are excited to continue these webinars as a way to connect, share and learn during this time, all doing our part in having healthy and safer workplaces. For those of you attending for the first time, thank you for joining us today, and for those that are returning, welcome back, and it’s great to have you all with us today.

Just some housekeeping. Today we’ll be exploring workplace sexual harassment and building a culture of respect, with the keynote presentation being delivered by Kate Jenkins. There is time scheduled for questions and answers. If you’d like to ask a question, please submit it via the chat function, which is accessed by clicking the question mark menu icon on the top right corner of your screen. While this event is designed to be informative and helpful, we also recognise and acknowledge that mental health-related discussions and sexual harassment can sometimes be difficult and may raise concerns for some attendees. We’d like to remind everyone that the following services are available, if needed. Links to these services are also posted in the chat function at the beginning of the event so that you can easily access these throughout the event. So without further ado, I would like to introduce Comcare CEO, Sue Weston, to share the work that Comcare has been doing in this space. A big welcome to you, Sue.

Sue Weston

Good morning, everyone, and thank you for joining us today. I too would like to acknowledge the traditional custodians of all the lands we’re meeting on today and pay my respects to their elders, past, present and emerging. It is a pleasure to welcome Australia’s Sex Discrimination Commissioner, Kate Jenkins, to this webinar. Comcare has been working to support our jurisdiction to better understand and prevent workplace sexual harassment. Today’s event is an important part of that work, and I’d like to thank Kate for her support.

As the Commonwealth’s work health and safety and workers’ compensation authority, Comcare is committed to supporting employers in our jurisdiction to create safe workplaces, including through education about ways to prevent and manage all forms of workplace bullying and harassment, including sexual harassment. While workplace health and safety laws don’t expressly refer to the risk of workplace sexual harassment, they do impose duties on employers and workers to eliminate or manage, as far as reasonably practicable, risks to health and safety of workers and other persons. Comcare recognises workplace sexual harassment as a psychosocial hazard which has the potential to cause workers psychological or physical harm.

As such, we want to see workplaces doing everything they can to prevent it from happening, and this includes identifying hazards, consulting with workers, assessing and managing risk, providing education and training, establishing processes to report without fear, shame or victim blaming, and taking appropriate action to respond to and manage any incidents. Last year, the Australian Human Rights Commission released Respect@Work, the report of a National Inquiry into Sexual Harassment in Australian Workplaces. This landmark inquiry has led to a heightened awareness and increased focus on understanding, preventing and reporting workplace sexual harassment.

In the May 2021 budget, the Australian Government announced measures to support the response to Respect@Work, including measures for Comcare to deliver. One of these measures is a Workplace Sexual Harassment National Forum planned for later this year. This forum is being developed in collaboration with other state and territory regulators and Safe Work Australia. It will provide stakeholders from across all jurisdictions the opportunity to develop a shared understanding of workplace sexual harassment and the associated workplace health and safety risks and actions. It will also be an opportunity to consider nationally consistent regulatory approaches and guidance for workers.

Complementing that activity is a program of other engagements with our jurisdiction, including online and face-to-face training offerings and webinars. Today’s event is part of that program. So keep an eye on Comcare’s website and subscribe to Comcare eNews to learn more about Comcare’s workplace sexual harassment education program. Comcare has been working with the Australian Human Rights Commission to develop and publish regulatory and practical guidelines on duties and obligations for employers, workers, managers and supervisors related to workplace sexual harassment. This guidance, which is available on Comcare’s website, will answer questions some of you have posed as part of registering to attend this webinar, including what Comcare considers to be reasonably practicable in relation to managing these workplace risks and suggested practical steps for employers to follow in order to meet their work health and safety duties to employees and other persons.

I appreciate the interest you’ve shown in this important topic by attending the webinar today. I’m also grateful to Kate and her team at the Australian Human Rights Commission for collaborating with Comcare in the education and support of our jurisdiction to enable better understanding of and preventing workplace sexual harassment. This webinar is a great example of that. Now back to our MC, Natalie.

Natalie Bekis

Thank you, Sue. I would like now to introduce our presenter today, Kate Jenkins. Kate Jenkins is Australia’s Sex Discrimination Commissioner and a member of the Australian Human Rights Commission. Her purpose is to advance gender equality, consistent with the Sex Discrimination Act and the Convention on the Elimination of All Forms of Discrimination Against Women. Kate is currently leading a number of projects, including Action to Implement the Respect at Work National Inquiry into Sexual Harassment in Australian Workplaces Report Recommendations, the Australian Human Rights Commission’s Collaborative Projects on Cultural Reform, with both the Australian Defence Force and Australian Federal Police, as well as the Independent Review of Commonwealth Parliamentary Workplaces. Kate is also an ambassador for the FIFA 2023 Women’s World Cup.

Prior to joining the Commission, Kate spent three years at the Victorian Equal Opportunity and Human Rights Commission, 20 years as lead equal opportunity partner with the Herbert Smith Freehills, and many years serving on boards of Berry Street Victoria, Heide Museum of Modern Art and the Carlton Football Club. Kate has joined us today to draw on the Respect@Work report and her insights on workplace sexual harassment and how it occurs in workplace, prevention strategies to reduce the risk, how we can strengthen responses both in the physical and digital workplace. A big welcome to you, Kate.

Kate Jenkins

Thank you very much, Natalie, and thank you also, Sue, for those opening remarks. It has been a complete pleasure to work with Comcare on a whole range of things, including your resources and your education, and also as a member of the Respect@Work Council, together striving for that ability for all of the regulators that work in spaces that affect sexual harassment to work together in a way that’s more coordinated and simpler for the users to understand. Thank you also for all the people attending today. I know there’s a real mixed audience of people who have direct responsibility for dealing with sexual harassment and also preventing sexual harassment, recognising there’s managers, there’s work health and safety personnel, there’s human resources personnel, and I welcome you all and appreciate you making the time.

I’m coming to you from the land of the Bunurong People of the Kulin nation just south of Melbourne, and I know – I think when we planned this, we weren’t expecting that everybody would be on the lands that they live and now live and work, but I encourage you to pay your respects to the traditional owners of the land on which you are attending. So today, what I’m going to do is, for about 20 minutes, give you an overview of the National Inquiry and the key findings we had, and particularly focus on the lessons for you as participants. I also remind you what Natalie’s already mentioned, is I know we’ve got some great questions in advance and also encourage you to send in your questions as we go through the session. I will give the overview, and I’m confident, based on having done other sessions, that you’ll have really practical and direct questions that you’re interested to know the answer to, and I’m very happy to discuss those or speak to those questions. So next slide, please.

Just as a quick refresher, so Sue has already mentioned that whilst I will get to, really, a clear understanding of why work health and safety personnel need to understand sexual harassment and why, as Sue has already outlined, it is actually covered by the work health and safety legislation, but I’m just doing a quick reminder that sexual harassment has been unlawful in Australia since 1984, when the Honourable Susan Ryan introduced the Sex Discrimination Act. We were one of the first countries in the world to introduce a prohibition on sexual harassment, and to just give you a really super simple version of the definition, because it’s actually a pretty clear definition, sexual harassment is basically unwelcome conduct of a sexual nature, where a reasonable person receiving the conduct would be offended, humiliated or intimidated.

And the laws under the Sex Discrimination Act particularly prohibited sexual harassment at work, and the policy reason for that is to ensure that we can all come to work without facing unwelcome, offensive sexual conduct. The Act also does cover other areas like education and other areas of life, but the focus for today is on sexual harassment at work. And I’m really flipping this up, because to some degree, no matter what area of practice, one of the expertise areas that we’re encouraging you to understand is just what sexual harassment is, because I think, particularly based on recent media, many people think sexual harassment is only at the extreme end. Many people think it is actually sexual assault, whereas unwelcome conduct of a sexual nature can include sexual jokes, sexual comments, comments about people’s appearance, bodies, sex lives, and, in fact, those are the most common examples of sexual harassment.

Can I go to the next slide, please? And if you click it again, it’ll rotate around for us. So the Respect@Work National Inquiry was launched on the 6th of March 2020. I launched it with the Honourable Marise Payne, the Minister for Women, and some of you will know on the 8th of April this year, the government provided its formal response to the report through the Prime Minister and the Attorney-General. So just an overview of the context of the inquiry. It was an 18-month process. It started in 2018, really off the back of the global Me Too conversation, and particularly referencing the Harvey Weinstein allegations in the US. It also coincided with our national survey on sexual harassment.

This time, 10,000 people were surveyed and we gathered data on – by the 21 ABS industry sectors, which was an incredibly useful piece of information, so that was in 2018. And just to give you an understanding, the next one funded by government will be in 2022, so next year, which will be a really important and interesting conversation and, if you like deadlines, really good for you to get out and get some things happening so that, hopefully, when the survey’s done next year, we will see a change in the numbers, which I will come to. I conducted 60 public consultations right across the country, major cities and regional centres, in the day when you could travel across the country. We received 460 submissions. There was economic modelling conducted by Deloitte Access Economics. We looked at what was happening globally and, as I’ve said, we delivered the report on the 6th of March 2020. Next slide, please.

So the key findings that we found – and if you hit the next one, we’ll go one by one. Thank you. That we found that sexual harassment is a common experience. So the 2018 survey told us that one in three Australian workers had experienced sexual harassment in the last five years, and our report outlines some really useful data in how that breaks down, particularly by industries, but, for example, young people were absolutely at the highest risk. So 45 percent of people aged 18 to 29 had experienced sexual harassment in the last five years. Women were at higher risk, but even then, 26 percent of men had experienced sexual harassment, and particularly cohorts and particular industries experienced greater risk. Next slide – next click, please.

The next finding was that the system as currently applied had placed the onus on victims to complain. Just to give you some context, there is a lot of discussion right now as well as the work health and safety obligations on whether there should be a positive duty in the Sex Discrimination Act, and if anyone’s read anything from me, you’ll know that I have made a strong recommendation that that should exist. The rationale for that is that the Sex Discrimination Act currently prohibits sexual harassment, but really only has any work to do if someone brings a complaint forward, and our survey tells us and has consistently told us over 20 years of surveying that Australians generally are reluctant to report sexual harassment.

Only one in five people who’d been harassed had raised a complaint, and I don’t think that will change. We heard many examples of people’s fears of the consequences of bringing complaints, but obviously, having a good complaint system in place is very important for all organisations, even though it shouldn’t be the primary focus of your work. But one of the findings was really the current system relies on the courage of victims to bring complaints, and that’s a system that has not worked. Next click, please.

We also, as I mentioned, obtained industry data, and whatever industry you are in, I would strongly encourage you to look at that. It showed – and one of the questions will be where is it done well. It showed that across our workplaces, whether it’s metropolitan, regional, rural, whether it’s big or small business and whatever industry, that sexual harassment is still a very common experience. An average of one in three Australian workers tells us that it is a high experience in a number of places. The breakdown by industry, though, is really useful because it gives you some better understanding of the systemic nature and how it applies.

So the mining industry, for example, has an average of about 40 percent, but it shows that 32 percent of men and 74 percent of women had experienced sexual harassment in the last five years, so there has been a real focus in that industry that has a great safety lens in its work to thinking about how that number be reduced. And the last finding was about the cost of sexual harassment. It was really useful – and I think at the time, Kelly O’Dwyer was the Finance Minister – to get some data on the actual annual cost of sexual harassment. This is a conservative estimate at 3.8 billion in 2018, and it’s conservative because we don’t gather data that enables it to be measured quite well. So, for example, historically, organisations like Comcare haven’t necessarily coded or gathered the cost of sexual harassment, but the intention is, going forward, that we will be better at measuring. Next slide, please.

So we made fifty – yes, if you just let those roll down, that will be great. We made 55 recommendations. There are a couple of key findings. One of them was that the key driver of sexual harassment is power disparity. It’s not driven by sex; it’s driven by power. And for most workplaces, gender inequality still continues to be one of the key power disparities at play. We found that the issue is a systemic one, although historically, it’s been treated in organisations – and I, as a lawyer, would have advised you – of a matter of individual misconduct, where investigations are done into a particular incident at a particular Christmas party involving two particular people, and yet when you look at the statistics, it shows that it’s a very common issue that has a systemic basis.

We found that the system, as currently applies, is complex and confusing for both employers and workers and that we need to shift our focus from a response to more of a prevention focus, and of the 55 recommendations, we covered these five areas: looking at data and research; primary prevention, which particularly looks at the roles of media, education and community campaigns to educate the broader community on sexual harassment; a new legal and regulatory framework; better workplace prevention and response; and better support, advice and advocacy. It’s probably those last three areas that will be of most interest to this audience. Next slide, please.

So I’ll focus on two main areas here, but happy to take questions on any of the areas. So if I go to what we’ve pointed out in the report in chapter 6, it describes recommended new workplace prevention and response framework. So as I’ve already mentioned, the laws as currently applied have really applied under the Sex Discrimination Act, which basically says you can bring a complaint of sexual harassment, you can name your employer, and if your employer can prove that they took reasonable steps to prevent the conduct occurring, they won’t be liable. So whilst, as a lawyer, I would have always said you have obligations, the reality is the only time that an employer really needs to take action is to try and prove that if sexual harassment happened, it wasn’t their fault.

And what has happened over the last 20 or 30 years – and I’m part of the advisers that would have encouraged this – is the formula for workplaces has been to have a complaint policy or have a sexual harassment policy, often incorporated into other HR policies, to have a complaint procedure, and to run training for staff. And then if a complaint comes forward, you just want to be able to pull out the spreadsheets that show that the person attended training, that you distributed the policy around, and that you followed the complaint procedure. Whilst all of that was done with the absolute best intention to prevent sexual harassment, in practice, that hasn’t worked to prevent sexual harassment.

So as I’ll go to next, really, the recommendation was that you need to take more – sorry, we’ll flip back. I’m confusing my slide controller. That we will – that we encouraged using more of a safety approach. Comcare, therefore, is our favourite and perfect partner for having this discussion because these approaches are more effective at preventing and, as Sue has already described, create a culture where you encourage people to come forward to make sure it doesn’t happen again, rather than deterring them because it might cost them their careers. So I’ll just quickly run through this workplace prevention and response framework. And if you’re in an HR or a work health and safety role – I think everyone in this – in terms of my recommended reading for you, one would be our community guide, which is the executive summary – to some degree, I’m giving you the community guide right now – but then the two chapters in it – because it is quite a weighty tome, the two chapters from a workplace perspective that are most useful is chapter 3, which describes sexual harassment, the nature of it, how it works in industries, what are the systemic type of observations we’ve got, and chapter 6 that looks at these different domains and describes what good practice would look like, recognising you’re delivering a balance of both prevention and response to improve safety at work.

And so just to skip around them – it’s always, as it is, at the top of every circle for every challenging issue – the importance of leadership is highlighted. But to some degree, I’d really encourage you to think about the leadership at the line level. So if anyone has heard me speak before, I’ve often said when I did focus groups and asked people to describe when they were in a workplace where they felt safe and supported and able to speak up, I’ve asked what was there. Now, no one told me there was a really good policy. It was never the policy that was the key ingredient, although I’m not for one minute suggesting you shouldn’t have clear an accurate and up-to-date policies. Generally, the answer was “I’ve got a line manager who speaks to me regularly, who I feel confident and comfortable with, who role models the respectful behaviour and who has really encouraged me to speak up, and I feel safe that I could do so.”

So that leadership heading definitely sits at board and CEO, but it definitely is always about how people feel with their direct line leaders who set the tone and who also can create the psychological safety for people to raise concerns. So risk assessment and transparency really is describing the sorts of practises that safety practitioners focus on, understanding what are the systemic risk factors. The third area was culture, and, particularly, we did observe that environments that really particularly promoted gender equality, and particularly, in the leadership levels, more females in the management ranks, did create a greater sense of safety on this issue.

Knowledge. So that’s a broad heading, rather than just saying “policy and training.” Really good, and the programs that Comcare are doing are really embracing this. This idea that this isn’t come in once every two years with an external person to tell you what you should do and then back out and it’ll all be good; that I sometimes call it – I know you educators will know – spiral curriculum. There should be multiple times that this message is coming out. So the policy’s distributed, there’s a discussion at a toolbox talk, there’s a webinar like this one, there might be some online learning, there might be a campaign at work. So the message needs to be reiterated. Having someone from outside come in, tell you what you should do and leave, research has told us that that has not worked.

Support. So that’s distinguished from reporting, and there might be some questions about supports, in particular. So we definitely found that people were fearful, and there were definitely consequences of reporting, but often people would say “I don’t want to report, but I would’ve really appreciated some supports to be there.” So thinking about what you are providing, not making them preconditioned on a complaint being made, is important. Reporting. We really recommended multiple ways to report, including anonymous reporting. So lots of people told us there’s – pretty much, you can do nothing or you can do zero to atomic and there’s not much in between. So “if there’s a sexual joke or a comment, I really don’t want this to be a major investigation. I’m not looking for anyone to be sacked. I would like some action,” but their workplaces have often not had multiple levels. And finally, measuring and sharing what’s going on and making sure people can learn from that.

OK. Up to the last overhead. Thank you very much. So this is circling back around, because many of you will work in a world where these regulations dictate, basically, your job. So we did consider quite broadly what we could do about the laws, that, as I said, they were complex and confusing. What we found is from a workplace perspective, we actually have a really strong employment regulatory framework that includes the Fair Work system, the work health and safety system and the discrimination laws. But first and foremost, we found that they could work together – even exactly as they currently are, they could work together better. And so the Respect@Work Council is partly – the first task of that council is to bring together work health and safety, Comcare or Workers’ Comp, Human Rights, state and federal, Fair Work Commission, Fair Work Ombudsman to work together and make sure that if people come to one of us and have an issue about sexual harassment, we’re all pretty clear that we’re sending the same message and that we understand how the whole system works. So that’s the first thing.

The second thing is we found, as you all know, that the work health and safety regime already applies for sexual harassment as a psychosocial disability, and so it has been a really welcome step that Safe Work Australia and Comcare and the state regulators have really embraced that and started to work, particularly where they’re working with the local Human Rights Commission, like we are with Comcare, to make sure that we’re all improving, providing better guidance, but it’s not confusing, it’s the same message from everyone, so that wherever you get your information, you’re pretty clear on what you’re doing. The Fair Work Commission as well, while it’s not – sexual harassment is not explicitly prohibited under the Fair Work Act, it is very clear that many people use that regime as a place to take complaints on a range of things, and they do sometimes include sexual harassment.

So in terms of the legal and regulatory framework, we did also make some reform recommendations, and I’m really pleased that the draft Sex Discrimination and Fair Work (Respect at Work) Bill was tabled in Parliament on the 24th of June. It’s currently – it has gone to committee. There’s currently some discussion about it. But to give you the headlines of what those amendments are, from the Fair Work Commission’s point of view, it has introduced what we recommended, which is a stop sexual harassment order under the bullying jurisdiction, and the point of that regime was people did say “we would like something practical, quick. We want to maintain our work employment. We’re not looking to run a case to the Full Federal Court,” and this is a mechanism that has been quite helpful from a bullying point of view.

It also amends the Fair Work Act to make clear that sexual harassment can be a valid reason for dismissal and also adds some provisions on compassionate leave for miscarriages in that Act. Under the Sex Discrimination Act, it introduces provisions that align the workplace coverage in the safety regime to match, to make sure that the Sex Discrimination Act describes work in that way. We found that work is done significantly differently, and the safe work regime has kept up or has a better description of capturing work more broadly, includes volunteers, it includes a prohibition on sex-based harassment, and it extends the timeframe for a complaint under the Sex Discrimination Act to 24 months.

The last area that I was just going to mention was that we also made a number of recommendations, and that includes much of what Comcare is doing and also the work that we are doing with a number of regulators and agencies. So if you look in those 55 recommendations, there’s a good wad of them involve educating relevant regulators and educating people like you, being human resources practitioners, safety practitioners and managers, better on the nature, drivers and impacts of sexual harassment and better on how you can address that as an issue. And in particular, I guess I’ll, at this point, flag a couple of things that we’re doing. One of them is we are putting together – and we are funded by the Attorney-General’s department to put together a new online platform that will provide resources, including links to some of these great resources you can get through Comcare as well, as a place for workers and for employers to go to just be able to grab some really good, high quality information without having to google most of the country to figure out where to go.

The other thing, I guess – I’ll just make call-out for you as you think about this – is that there can – in you looking at that framework, there can be this view that “OK, we need – HR people need to hand this over to us safety people. We’re on it now. Leave it with us.” So I just wanted to encourage you to think that the spirit of respect at work really is understanding that there are a range of people who have responsibility and expertise that will be relevant to reducing – hopefully eliminating – sexual harassment and definitely handling it better. So even when I’m talking to the regulators, as well as understanding that safety and prevention framework, I’m encouraging a better understanding of what sexual harassment is, because it's really – we’ve found through the inquiry that many people think sexual harassment is, as I said, that sexual assault conduct, but a lot of other conduct that would be sexual harassment and does create a barrier to particularly women in work is viewed as “well, that’s OK. It’s tolerated. It’s justified. It’s not a big deal.” So having a better understanding of what sexual harassment is rather than relying on the media frenzy about sexual harassment is important.

And we’re also really encouraging you to get better understanding of gender and how that plays on this particular issue, and when I say “gender”, traditional or expected roles of men and women. So often, the sort of sexual harassment men experience is where they’re not taking up those macho male role models, that they’re not being male and masculine in the way that stereotype views are expected. And the other area is understanding and ensuring you have an understanding of trauma. The news reporting this year has really reminded us that some of these sexual harassment issues are very serious. The people who are affected by them are either affected by trauma from the conduct or triggered from previous things that have happened to them.

So when you’re handling someone and their complaint, one of the things particularly that I’ve spoken with Safe Work and with Comcare a lot about is that not only are you looking at what the prevention steps are, but when you look at what the complaint or response process is, you need to make sure that’s not causing more harm. And that has been an unrecognised – I think employers just feel like “well, we’ve got this complaint. We’ve got to do these things,” and yet a lot of the people that spoke to me really recounted how brutal the complaint process was on them. So that’s something.

The trauma expertise comes from different places, so often, for example, CASA in Victoria or Canberra Rape Crisis Centre. So those places who deal with people who have dealt with traumatic events. There are certain things that you can learn that really make all the difference. So that was all I wanted to say, so we can – thank you to my fabulous slide presenter there. That made my life easier, you doing it. Natalie, I’ll pass to you, but I’m happy to take questions now.

Natalie Bekis

Excellent, Kate. There are a heap of questions, so I’ll get going. I’ll read them out for you. This one’s relatively long: “Forgive me for inserting my personal experience, but I’m wondering about situations where young workers who are first entering the workforce and may be working for family-run businesses or other informal type of work arrangements – small business, regional sectors, etcetera – how these vulnerable people are reached and educated about sexual harassment in the workplace. As a young women in my first few jobs, I was routinely harassed by different employers. However, other than going to the police, which I didn’t think was appropriate, I didn’t know how to report. Is there a proactive approach to educating people and providing resources in situations where their employers might not be supplying such information for them?”

Kate Jenkins

That is a really great question that hits so much of what we heard in the national inquiry. So if I start – you know, you’ve inserted your personal, and I’ll insert one of mine. So I have step-children and two children. I have – there’s five, so I cover a bit of a range, but certainly, my step-children I’ve known since they were very young children. So I’ve seen them enter the workforce as they’ve all studied as well as worked, and I’ve now got a 15 year old son who, when he could, embraced his very first – almost the day he could start working, and possibly before he probably could have started working, he raced out and got a job at an ice cream shop, which sounds to me like the most dream first job you could possibly have. And believe it or not, he’s already on his second job – he’s 15 and a half – in a café, because he worked out he liked the people more and they could pay more.

In watching that and in thinking about the national inquiry, I did consultations specifically targeted at young people, and the statistics I’ve told you – so 45 percent of people aged 18 to 29 were harassed, but even more shockingly, the 15 to 17 year olds – 20 percent of them had been sexually harassed in the previous five years, remembering that most of them were not in the workforce for most of that five years. So what we heard was that those people are in these more informal jobs. They tend to be casual. They tend or be retail, hospitality. They might do some labouring. But they tend to be jobs around study, school, and they tend to – a couple of things. One is they don’t have the actual confidence to speak up. The Fair Work Ombudsman is really across a whole lot of risks about this cohort of workers that might be in the informal economy.

But I was also really surprised even in those 20 year olds who I spoke to, who are at university, who had had multiple jobs, multiple – arguably insecure, but totally fit what they wanted to do, the casual work and the ability to suit themselves, but who had almost zero understanding of workplace rights, including, in particular, sexual harassment. So there was one particular – there were so many things I heard, but there was one quite handsome young man, who was about 20, 22. He was still studying, so working part time, and he said to me, “I did not know this was unlawful, and, in fact, when – the bar I work at, they encouraged me to flirt with the women who come up to get more sales of the drinks.” So a number of them said not only – it’s so normalised, and in that case “I was asked to do the very thing that you are saying is unlawful.”

So that is a real issue. It’s also really important for those industries that have those casual and young staff to understand this as a real risk, that even if you’re, for example, a large retail employer but you’ve got franchises or you’ve got different locations, the power differential between a 15 year old and the person running the ice cream shop is massive, and the ability to speak up is very difficult, but also if they’re clever, they just find another job. And just to be clear, my son didn’t have a bad experience; he wanted more money, as you do.

So just to give you a quick sense – and I won’t answer every question quite as comprehensively, but you’ve really hit the heart of a lot of what we looked at. Those primary prevention recommendations are about how do you reach and educate that young cohort. So we did, for the Fair Work Ombudsman, recommend that sexual harassment be included in the information packs, those Fair Work sheet that’s given out. I know it’s not the only way, but at least – I know they’ve already included at least the word “sexual harassment” there. It might be the only time that those people see something about their workplace rights. But in particular, recommendations 9 to 12 are about education both in schools and in university or tertiary or VET education institutions to ensure that we reach those young people in different ways, that we can reach in and tell them about what their rights are. Definitely, we want to educate them about gender and how inequality works. But actually, we just need to tell them some really basic straight-up rights.

The community education is also aiming for that. In terms of where people can go, that is very difficult. There are some specialist services, like Switchboard for LGBTI communities, and there was – in terms of the supports and reporting, you’ve got support services or contacts there on the screen – which may not be on the screen, actually. It’s on my screen. But you can contact the Human Rights Commission. You can contact 1800RESPECT just to talk about those rights and get supports. So there are some different places, but the Respect@Work Council is working really hard to make those places that people can call a bit clearer and easier to understand.

The last thing I’ll say – because you hit on so many things with this question – is that to some degree, your question is also about the difficulties in small business, and the platform that we’re looking at is really to help small businesses as well. So often, if you’re working in a small business, you know, your harasser might be the business owner, and that is a really difficult place. It is a reason why unions can be really helpful, why industry action is important, because it’s very difficult. I’m not going to pretend it isn’t. If you’re in a small business and you’re being harassed, and if you’re in a regional area, those are some of the most difficult situations.

Natalie Bekis

Thanks, Kate. I think you’ve answered a couple of other questions that people have posted too. But just a new question: “Do all instances of sexual harassment in the Australian public service need to be reported under the Public Interest Disclosure Act?”

Kate Jenkins

I’m not going to be, so I’ll have to defer in terms of the technicality of the Public Interest Disclosure Act, and maybe we can come back more broadly. But in terms of the public service or even in other workplaces, there is not an obligation, as a broad comment, to report sexual harassment that happens to you or that you see, and in terms of a victim-centric approach, the person – you should be thinking about the welfare of the people involved first and foremost. To some degree, I think the practise – or the approach that employers have taken is “this is an individual misconduct issue, and if it happens, I need to get the bad guy or the bad woman,” whoever the problem is.

And a lot of our report is about encouraging flipping that, because there has been, to some degree, a neglect of the welfare of the person who’s experiencing the sexual harassment in the very zealous, enthusiastic seeking out to discipline the other person. I mean, we can walk and chew gum. We can do things, but as a general comment, there is not – to my knowledge, there’s not an obligation, but actually, as I answer that, we would have, two years ago, given that a lot of consideration, but I can’t right now recall. So we will, through the avenues, let you know if the advice is any different, but my recollection is that no, it’s not a compulsory – it’s not a mandatory reporting situation.

Natalie Bekis

Thanks, Kate. Thank you. Moving on. “Random question: which area is chapter 3?”

Kate Jenkins

So chapter 3 is about understanding sexual harassment. That’s just reminding you. Chapter 3, chapter 6. So chapter 3 of our report, which is a very big tome, is the chapter that is looking at the data on what sexual harassment looks like right now. But from a workplace point of view, there’s also some sections there that look at different industries, like if you go to support and social services. The particular nature of an industry. I guess that’s one thing I didn’t emphasise as much when I was speaking, but one of our recommendations is that industry approaches seem to have the best impact. So universities have really come together in the Respect. Now. Always. campaign to understand what’s the experience of students.

The legal profession, particularly since the High Court allegation of sexual harassment, has started to really understand what are the power dynamics. How does sexual harassment impact junior lawyers who might be an associate to a judge or articled to a partner? How does that work in practice? So there are different industries that have different risk factors. I think the example you gave earlier or that I spoke about with young people in retail and hospitality, there are particular risk factors there, so those are described a bit. So the reason that chapter 3 and chapter 6 for just a workplace practitioner is you’ll read it, and it will make sense. It will just help you understand better how sexual harassment happens, who is at greater risk and how it works in different industries, and chapter 6 is the one saying “this is what employers should do.”

Natalie Bekis

Excellent. Thank you. There’s a couple of questions that are getting quite a lot of likes, so I’ll go to them next: “Kate, I’d be grateful if you could take us through the risk assessment process for sexual harassment. Safety practitioners are familiar with this for physical risk, but how do you see this working for sexual harassment risks?”

Kate Jenkins

So the sort of examples – and during the course of the inquiry, I was really pleased to do a little bit of work. There were a few employers that really embraced it, and so BHP was one of them, and there’s a little – you will all know better than me. So I went into some health and safety conversations to understand what you would do to consider the safety risk, and so in the report there’s a bowtie analysis: “this is the incident, and then we look at what we did before to prevent it, and then we look at what we did afterwards to deal with it and make sure it didn’t happen again.” And I remember in those conversations being told that when you look at sexual harassment and you did that kind of analysis, you realised most of the action happened after it had happened. And I think I’ve given you an explanation on why and how that occurred.

So if I think of, for example – and you’re going to be better at using the methodology, but I’ll give you an example. So for example, when we look at – so the start of the conversation was really about media and entertainment. Harvey Weinstein, the biggest movie mogul in the world, somehow he’s been able to do whatever he wants. So in Australia, there was a collective that Mitch Fifield and Michaelia Cash encouraged the media and entertainment sector to meet with me to talk about what they were doing. When we sat down to consider the industry, we realised there were a whole lot of risk factors that applied that meant those power dynamics existed.

So just off the top of my head, first and foremost, an industry that was driven really by insecure work. If you’re a camera operator, you were on a season of this show, and it went for six months, and then you came and you left, and if you did makeup, then it was likely to be contract work these days. There’s little permanent work. And it was an industry – actors, you know, everyone. You’re just as good as your last job. It was an industry that relied on word of mouth and referral that you didn’t apply for the job and get it; it was “I know someone that was on the last,” so you had to keep those relationships. It was an industry where most of the powerful people were still all men and still running things how they wanted to run it. It was an industry where sexual behaviour sometimes was part of the job, and there was a history of sexual – and “we do this stuff because we’re the industry.” I could keep going on and on.

So even just sitting down and understanding how the work is done. There’s been a real discussion about this with mining. So take that. I did a focus group: fly in, fly out; male dominated; work teams that are in remote environments; workplaces without good communication; places without HR support on the ground; a whole lot of different things going on. You can almost – you all know, and I can’t talk to the detail, but we’re doing the work in Parliament at the moment. It’s another example. Just understanding how work is done, what is rewarded, how the system works, who holds the leadership positions, and doing that and thinking about where will there be a higher risk of sexual harassment in the situation, and then using your approaches

And so this is where I encourage a meeting in a room with your lawyers, your HR people, your safety people. You’ll probably be able to map out a whole lot of those issues. So we are trying to make sure there’s guidance, and Comcare – the structures and the guidance that they’ve prepared already does start using that model of understanding the risks and looking at what steps you’re taking to mitigate. So I hope that helps.

Natalie Bekis

That’s great. Thanks, Kate. Now moving to grey areas: “How can we best prevent and address grey areas, e.g., someone sending too many messages or repeatedly asking someone for coffee to the point that it makes the recipient feel uncomfortable, but they think saying anything may be overreacting.”

Kate Jenkins

Yes. So there’s a couple of parts of this. One is just starting with the – what you intended isn’t relevant; it’s how it was received. So it’s, like I’ve told you, 1984, and yet still people say “well, you know, I’m just a huggy person.” I think Cuomo recently said he was a huggy person after – so we’re getting a lot of this. So educating and understanding that we’re simply talking about respectful interactions. So I think my first point of this is better education, that this is not some crazy, hippy, crazy idea. Even at the small or grey area at the smaller end, they are impacting the cultures of respect in your workplace.

To some degree on this issue, one of the most important things is educating and having the leadership in an organisation be able to articulate and set the tone of what respectful interactions are. Just a sidebar is one of the things – I’m not a very – I’ve grown up – I’m not a kissy person, and so I have never really understood when I go into a business meeting where people who I’ve worked with a long time might kiss me. I’ve just never understood that. So that’s just between us. COVID has been terrific [laughs] because it’s stopped a whole lot of things. Now, I wouldn’t object, because actually, the most important thing when you’re doing your work is your relationships. Some of these people I’ve known a long time, and I might do that if I was having dinner with them, but – so I do think this isn’t crazy stuff. It’s just said in helping people understand what the general standards of behaviour, and I think leaders are really important for that.

The second part, though, is how – and I’m probably just going to be giving my view at this point, but Australia has this real way of saying “we need to call things out,” as if “I’m going to tell you off, and then it’s all going to be fixed.” And I just think that’s – I think that in terms of complaining, the research that we’ve done shows that people speaking up, unless you’re in a powerful position, can have impacts on your career, and even if it doesn’t, I’ve spoken to some pretty powerful people who’ve said “I’m really sorry I didn’t speak up, but I’ve still got to work with that person,” so I’m not the biggest fan of just relying on speaking out. That’s why I circle back to leaders. But I do think that a pretty constant message about what is acceptable, about this isn’t – people do want to get on. They do like each other. They often don’t speak up because they like the person. But just we’re at a moment in time where I think the cultural change is happening across the whole community, and to some degree, that won’t hurt in workplaces.

So I think that some of the good examples is where there has been education, and then there’s just informal ways that people can say “we’ve got to keep it above the line.” It’s very Australian, how we do this, to some degree, but I think we need to create permissions and safety, and I think, as I’ve said, those line managers are really critical to saying “we’re happy for you to speak up and you will not suffer any consequences for that. I embrace – even if you’re calling out me, I embrace that.” And I’ve had some great examples, particularly in police. I do quite a lot of work – we do some work with AFP – of people raising issues, but going around the commander, and the commander involved saying “I brought them in. They were petrified, and I said, ‘Thank you for doing that. That must have taken huge courage for you to raise that about me.’” Imagine if that happened, that example went around like wildfire and everyone suddenly knew they could speak up. So it’s nuanced, but it’s important.

Natalie Bekis

Fantastic, Kate. And we are nearly out of time, so we have lots more questions, though. So for those that have posted a question, a very big thank you. We are collating them all, and we will develop a resource kit around these questions and answers, and we’ll work with Kate on that. There are just too many to get through in two minutes, and so we will get that out to you. But I do want to say a very big, big thank you to Kate for your time today, your openness and passion towards this really important topic and putting it on the agenda. I also want to thank each and every one of you who have attended today’s events. We’ve had a huge number of people. Over 400 people have attended today’s events, so thank you so much, and please share the learnings. Share the learnings with your colleagues, your family, your children, and that’s – we all play that part in raising awareness on this important issue.

As I said, we will be developing a question and answer for this, and we will post that and publish that on our website, and for those that are interested in further webinars, we do have Safe Work Month coming up, and so Comcare will be running a series of webinars in October for Safe Work Month, so please keep an eye out. We will publish in the eNews, obviously on our website, and for some of you who are subscribing to us, you’ll hear more from us there. So thank you so much, Kate, for your time today, and thank you everyone for attending. That draws us to a close.

Page last reviewed: 26 August 2022
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Date printed 02 Dec 2021

https://www.comcare.gov.au/about/forms-publications/transcriptions/building-a-culture-of-respect-workplace-sexual-harassment-never-part-of-the-job