In August 2020, the Victorian Equal Opportunity & Human Rights Commission released its new and updated guideline for complying with the Equal Opportunity Act 2010 (Vic) (Equal Opportunity Act): Preventing and responding to workplace sexual harassment (Guideline).
The positive duty
The Equal Opportunity Act requires employers to take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible in the workplace.
A business must take steps which are reasonable and proportionate with regard to the size, nature, circumstances, resources and priorities of the business as well as the practicability and the cost of such steps.
For example, it may be reasonable and proportionate for a small, not-for-profit community organisation to take steps to ensure that its staff are aware of the organisation’s commitment to treating staff with dignity, fairness and respect and make a clear statement about how complaints from them will be managed.
While for larger businesses, more substantial measures will be required to meet the reasonable and proportionate standard. For instance, it may be reasonable and proportionate for a large business to undertake an assessment of its compliance with the Equal Opportunity Act and then develop a compliance strategy that includes regular monitoring and provides for continuous improvement of the strategy.
The minimum standards
The Guideline sets out six minimum standards to comply with the positive duty of employers to eliminate sexual harassment in the workplace.
The Guideline is not binding on employers. However, it is authoritative, meaning a court or the Victorian Civil and Administrative Tribunal may consider whether employers have complied with the Guideline when hearing a case involving sexual harassment.
The minimum standards are:
Employers understand their obligations under the Equal Opportunity Act and have up-to date knowledge about workplace sexual harassment.
2. Prevention plan
Sexual harassment is prevented through the development and implementation of an effective sexual harassment prevention plan.
3. Organisational capability
Leaders drive a culture of respect by building organisational capability.
4. Risk management
Employers have built a culture of safety and address risk regularly.
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.
6. Monitoring and evaluation
Outcomes and strategies are regularly reviewed, evaluated and improved.
We can assist your business to meet the minimum standards and manage any potential liability for contraventions of the Equal Opportunity Act with the following support:
- employee training;
- training for your in-house trainers;
- a board focused briefing on key risk issues for board members, including duties to disclose to the ASX and learnings from cases involving senior executives;
- an audit of your existing policies;
- an audit that provides your business with a deep and independent assessment of its culture and potential legal risk issues;
- conducting or supporting an investigation.
If you would like to discuss further, please do not hesitate to contact the Employment & Labour team.