Respect@Work reforms.

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Respect@Work reforms

  • Effective 12 December 2022, the Sex Discrimination Act 1984 was amended to include a positive obligation to eliminate sexual harassment.
  • On 6 March 2023, an express prohibition on sexual harassment commenced operation under the Fair Work Act 2009. An employer will be vicariously liable for the contravening conduct unless it can demonstrate it took all reasonable steps to prevent it.
  • The Australian Human Rights Commission (AHRC) will be empowered to monitor and assess compliance with the positive duty commencing 12 December 2023.

Following recent legislative amendments, there is now a positive duty on all employers to eliminate sexual harassment. Further, the Fair Work Act 2009 has been amended to will shortly include an express prohibition on sexual harassment which will attract penalties for non-compliance.

Positive duty under the Sex Discrimination Act

Effective 12 December 2022, the Sex Discrimination Act 1984 was amended to include a positive obligation to eliminate sexual harassment.

Under the new provisions, an employer or person conducting a business or undertaking (duty holder) must take “reasonable and proportionate measures” to eliminate, as far as possible:

  • sexual harassment
  • sex based harassment
  • conduct that subjects a person to a hostile work environment
  • victimisation

Sex based harassment prohibits unwelcome conduct of a demeaning nature on the ground of sex. In short, it’s designed to tackle sexism. The hostile work environment prohibition is designed to capture conduct such as such as displaying obscene or pornographic materials, general sexual banter, or innuendo and offensive jokes, which although not necessarily directed at a particular individual, can create a sexually charged or hostile environment causing one sex to feel unwelcome.

The meaning of ‘reasonable and proportionate measures’ will vary between duty holders in accordance with their particular circumstances and size, but can include implementing policies and procedures, collecting and monitoring data, providing appropriate support to workers and employees, and delivering training and education on a regular basis.

Importantly, and in a significant change, the Australian Human Rights Commission (AHRC) will be empowered to monitor and assess compliance with the positive duty including:

  • Conducting inquiries and providing recommendations for compliance
  • Issuing compliance notices
  • Applying to federal courts to direct compliance with a compliance notice

To provide employers with sufficient time to get their house in order, the AHRC powers will not commence until 12 December 2023.

Following the amendments, the AHRC will also have the power to commence inquiries, on its own motion, into alleged systemic unlawful discrimination. Unions and other groups will also be able to bring representative claims to court.

Prohibition on sexual harassment 

On 6 March 2023, an express prohibition on sexual harassment commenced under the Fair Work Act 2009. A contravention will attract penalties in the same manner as the general protections jurisdiction and the employee will be entitled to seek damages.

The employer will be vicariously liable for the contravening conduct unless it can demonstrate it took all reasonable steps to prevent it.

An aggrieved person, or their industrial association, can make an application to the Fair Work Commission for a “stop sexual harassment order” or request the FWC to otherwise deal with the dispute.

The aggrieved person will have a period of 24 months after the alleged contravention to file the application, but only in relation to conduct that occurs after 6 March 2023.

If the application is not resolved through conciliation, the parties can consent to arbitration by the FWC. The FWC will be empowered to make orders for compensation, lost remuneration, and / or an order requiring a person to perform any reasonable act, or carry out any reasonable course of conduct, to redress the loss or damage suffered. If the parties do not consent to arbitration by the FWC, the applicant can make a court application and also seek penalties of up to 60 penalty units for an individual or up to 300 penalty units for a corporation.

The Fair Work Ombudsman will also be empowered to prosecute contraventions.

 

 

PSYCHOLOGICAL SAFETY

Psychological safety refers to the feeling of comfort and security that workers experience in expressing their ideas, opinions, and concerns without fear of retribution or negative consequences. It is an essential aspect of a healthy work environment that encourages open communication, collaboration, and innovation. In the construction industry, where workers are exposed to various risks and challenges, psychological safety can help reduce stress and anxiety, improve productivity, and enhance job satisfaction.

To foster psychological safety it is essential to create a culture of trust, respect, and open communication. This can be achieved through several strategies, including:

  1. Leadership commitment: Leaders in the construction industry must prioritize psychological safety and communicate its importance to their teams. They should encourage open communication, listen to workers’ concerns, and take proactive measures to address safety issues.

  2. Safety training and education: Providing workers with safety training and education can help build their confidence and knowledge, enabling them to identify and report safety hazards effectively.

  3. Reporting mechanisms: Creating safe and confidential reporting mechanisms can encourage workers to report safety hazards without fear of retribution or punishment.

  4. Encourage collaboration: Encouraging teamwork and collaboration can help foster a sense of trust and mutual respect among workers, leading to better communication and collaboration.

  5. Positive reinforcement: Recognizing and rewarding workers who report safety hazards or contribute to improving safety can reinforce the importance of psychological safety and encourage others to speak up.

 
 
 

“Psychological safety is the very definition of a positive workplace. It is the lead indicator of psychosocial hazards, culture, workplace claims and innovation. This is where all leaders need to spend some time demonstrating curiosity and action”.  Carolyn Grant

“Creating a psychologically safe work environment is crucial for improving safety, reducing accidents and injuries, and increasing productivity. It’s also essential for building a culture of trust and respect that helps employees feel valued and supported.” – Paul de Gelder, former Australian Navy diver and motivational speaker

The ROI on psychological safety 

There is a return on investment (ROI) for spending money on psychological safety. While the ROI may not be immediately apparent, investing in psychological safety can lead to several long-term benefits that can positively impact a company’s bottom line.

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Research has shown that psychological safety is strongly linked to improved safety performance, reduced accident rates, and increased productivity. By creating a culture of psychological safety, workers are more likely to identify and report safety hazards, which can prevent accidents and injuries and reduce the associated costs. In contrast, companies that lack psychological safety may experience higher accident rates, which can lead to increased workers’ compensation claims, lost productivity, and higher insurance premiums.

Moreover, psychological safety can lead to increased job satisfaction and retention rates, reducing the cost of employee turnover. Studies have shown that workers who feel psychologically safe are more engaged, more likely to speak up about workplace issues, and less likely to leave their jobs. This can result in cost savings associated with recruiting, hiring, and training new employees.

Investing in psychological safety can also lead to improved innovation and problem-solving. When workers feel comfortable expressing their ideas and concerns, they are more likely to contribute to the development of new solutions, leading to increased efficiency and cost savings.

 

Actions to take to prepare

In our studies with psychological safety studies with organisations and boards we have found a number of organisations who are bravely trying to do different things to improve their cultures. Some of their successes have been by implementing the following:
1. Update your policies and procedures to reflect the new laws and ensure they work.
2. Engage in a strong change management and communications campaign with employees, contractors and suppliers about respect@work, behaviours and codes of conduct and procedures.
3.  Reviewing leadership competency frameworks to ensure that they have a focus on “essential human skills” erroneously referred to as “soft skills”.
4. Focus on building diversity by working with multicultural professional associations to recruit and build cultural awareness
5. Focus on inclusion and belonging by creating social clubs at work that might be about culture, charity, religion, food, hobbies
6. Increased training on conversational skills, emotional intelligence and social intelligence
7. Cultural and neuro-diverse mapping to understand our individual strengths and share and learn from each other
8. Eliminating internal cultural and engagement surveys and replacing with team psychological safety and organisational resilience
9. Working on ensuring trust and respect is valued and demonstrated at all levels of the organisation
10. Ensuring strong feedback loops and responsive actions to raising of issues.
11.Social support by providing opportunities of team building, peer support and community involvement
12. Activities and measuring and monitoring of the level of psychological safety, trust, organisational resilience.
 
 
 

Legal & Regulatory Compliance

In Australia with new WHS and Anti-discrimination laws, compliance and risk is a great motivators for change. Under these new legal amendments, business owners, directors and managers are directly responsible for ensuring a positive workplace free of bullying and harassment.
 

A focus on the new Respect@Work Laws and workplace psychosocial hazards. These two new Workplace Health and Safety Laws provide significant responsibility on business owners, CEOs, managers and directors.

 The first major changes will be a result of the Respect @Work laws which introduces a positive duty for employers to take reasonable and proportionate measures to eliminate sexual harassment, harassment on the grounds of sex, hostile workplace environments and victimisation, as far as possible,’ Mr Grant said.

‘The Bill places a much greater emphasis on senior managers and directors to take an active role in stamping out sexual harassment in their workplaces. Employers have always been exposed to vicarious liability for the actions of their employees breaching the Sex Discrimination Act. However, the Bill now elevates the focus directly on employers to take ‘reasonable and proportionate’ measures with the Australian Human Rights Commission now able to make direct inquiries into an organisation if the Commissioner considers that they are not complying.’

Founder of People Plus Science People + Culture Audit and Australia’s first Boardroom Psychological Safety Benchmark, Carolyn Grant sat down with Barrister Simon Grant to identify six steps recommended for business owners, CEOs, directors and organisational leaders to manage their risk and prepare for the new laws (WHS psycho-social hazards and respect@work.

Nine (9) Recommended steps for proactively managing new laws

  1. Update policies to ensure that they reflect the new laws on appropriate workplace behaviour, noting the broader meaning of what constitutes sexual harassment.
  2. Update all procedures to ensure that the policies work when implemented ie your whistleblower process, your complaints management system, feedback to loops, training and communication to any contractors or external third parties, updates to external contracts.
  3. Train and educate all workers on their duty of care, including targeted training sessions based on seniority and responsibility within the organisation. As best practice, training sessions should be compulsory and run at least once a year.
  4. Train and educate all workers on their rights and the processes available to them.
  5. Obtain as much guidance from internal and external resources on the new duty, including from the proposed guidelines to be issued by the Australian Human Rights Commission.
  6. Initiate an external review of your organisation’s workplace culture to determine whether there are any gaps and address any deficiencies as soon as possible.
  7. Undertake a psycho-social hazards assessment with each employee to assess risks
  8. Apply a risk management framework to mitigate and manage risks
  9. Measure, monitor, and report on the psychological safety of teams at all levels.
 
 
 

Measure, monitor + report on psychological safety

Psychological safety is a critical component of a safe and productive workplace in the construction industry. Fostering psychological safety requires a commitment from leaders, effective communication, and a culture of trust and respect.
 
By prioritising psychological safety, you will be measuring respect, inclusion, safety to speak up, safety to contribute, safety to challenge, and trust.  By talking and engaging with your workforce you will identify issues that need to be addressed (but only if you have already established high levels of trust).  

However, don’t forget that you need to also assess, monitor and report on psycho-social hazards in the workplace due to the emphasis of psycho-social hazards. This means identifying, and mitigating psycho-social hazards in the workplace.  Again, if your workplace has low levels of trust, poor culture and low levels of psychological safety it will be difficult to identify and mitigate those risks. 

Consider engaging a third party to measure, monitor and report to the leadership team. The risks are high – it’s worth it.
 

Interested in Learning More?

Book a briefing on psychological safety and your organisation’s needs today. Mitigate your greatest risk and drive high performing, thriving teams.

Psychological Safety Assessments