Episode 3: Respect@Work, sexual harassment and psychosocial risk

Tony Morris:

At Ashurst, we acknowledge First Nations peoples as the traditional custodians of the land on which we work in Australia, and pay our respects to their elders past and present. We extend that respect to Aboriginal and Torres Strait Islander peoples listening today.

Tony Morris:

Hello, and welcome to Ashurst Business Agenda. I'm Tony Morris, partner with Ashurst Risk Advisory and leader of our national work health and safety consulting team. You're listening to the latest episode of our mini-series about trends in work health and safety. Today, we're tackling the issue of sexual harassment and psychosocial risk at work. Joining me for today's discussion are two experts in the field, Dr. Rebecca Michalak and Julia Sutherland. Rebecca is an expert in psychosocial risk, focusing on business performance and corporate governance. She has over two decades of experience in the public, private, and not-for-profit sectors, and has a unique transdisciplinary background that includes qualifications in psychology, business, and management research. Julia is a legal partner with Ashurst Australia in our employment legal team. She's the legal expert in the areas of employment and work health and safety law. And Julia works closely to provide legal advice with many of our clients on this very topic.

Tony Morris:

In today's conversation, we'll talk about the fact that these are work health and safety risks as well as they are HR matters and the importance of the work health and safety teams within organisations working with HR. We talk about how important it is to conduct a full risk assessment and consulting with your workforce on the plan to proactively manage these risks. And we'll talk about the importance of implementing, measuring, monitoring, and then reporting on the work health and safety controls, any new controls that one might have to manage this risk. And finally, we talk about how this is proactive management of these risks and how it increases productivity, performance, and protects your brand and reputation. Here's our conversation.

Tony Morris:

Firstly, welcome Becs and Julia, and thank you for joining me. I'd like to start our discussion with a quote from Kate Jenkins, Sex Discrimination Commissioner and author of the Respect@Work report. And I quote, "Sexual harassment is not a women's issue. It is a societal issue which every Australian, and every Australian workplace, can contribute to addressing. Workplace sexual harassment is not inevitable. It is not acceptable. It is preventable." I find that quote very powerful, and it's a clear call to action for all Australians, particularly business leaders, I feel. And so let me start off, Julia, by asking you a question, if I may, from a legal perspective. Is it correct to say that these risks are clearly work health and safety issues for an organisation and its leaders to manage? And are the risks relevant to more than just the mining industry, which has been subject to significant media focus on the issue?

Julia Sutherland:

Yeah. Thanks, Tony. And thank you very much for inviting me to contribute to today's discussion with Becs as well. In some ways, I might take that second question first, and I think you've already answered it in the quote that you gave, Tony, because it's recognised that this is not a mining industry specific issue, it is not a one or two industry specific issue, but it's an Australian-wide societal issue. And in that respect, yes, there has been some focus on this particular topic in the mining industry, in particular in some states. Western Australia is an example of that. That's not to say it's not an issue within every business in Australia, regrettably. And that's why we're here to talk about how we might shift the dial on that.

Julia Sutherland:

In terms of your first question, which was, "Is it correct to say that the risks are clearly work health and safety ones?" I think it is correct to say now that sexual harassment is accepted as a work health and safety risk by regulators, so those people who enforce the work health and safety legislation. And if you look at a raft of guidance material that is now available, and it has been in the last 12 to 18 months, there's one example particularly from Safe Work Australia which notes plainly you have a duty to manage the risk of sexual harassment just as you do for any other risk.

Julia Sutherland:

But also, I think it's important that we shouldn't be concerned as businesses if we haven't been considering this as a work health and safety risk or we're just in the early part of our journey, because that's okay. Because many people are on the early part of the journey, and this is a relatively evolving issue. And if we look back a couple of years, this was not considered a work health and safety risk and one to manage in that context. So it's not something to be alarmed about. It's just something to now get on to managing as a work health and safety concern.

Tony Morris:

That's great, Julia. Thank you. Is there any timing issue on it? I mean, if the client or organisation is just really starting out to address the issue, how long might they be expected to take, if you like, to actually start managing this risk proactively?

Julia Sutherland:

Yeah, Tony, it's an interesting question. I tend not to think about things by way of time, but more by way of action. So provided, I think, businesses are actually giving some considered thought to the risk of sexual harassment in their workplaces and identifying, firstly, and assessing what the risk is and then trying to find those steps to manage it, provided the thought and the action and the attention is being given to the topic, that's the real focus.

Tony Morris:

So, Becs, can I go to you? And we all know what sexual harassment is, but what do we mean by psychosocial risk?

Dr. Rebecca Michalak:

Thank you so much, Tony. And it's really wonderful to be here having a conversation, both with yourself and Julia, so thank you for the opportunity. Look, I think rather than getting bogged down in really technical specifics about definitions, when I'm working with clients and I'm talking about psychosocial risk, I try to get the client to think about it in terms of a combination of three things, and it can exist at an individual worker level and it goes all the way up to strategy and at business risk level. So I speak to clients and say, "Think about it this way. We have some psychosocial hazards that go with the type of work that we do, so basically what we do in the workplace. And we can hone that into things like work design." So we've got that as one category of hazards.

Dr. Rebecca Michalak:

We've then got a category around where the work is done, so the workplace itself, so the work environment and cultural factors and a range of other things. And sexual harassment basically fits in that broad hazard category. It's something that happens contextually, albeit that it feeds off the other two categories. And so the third category is to do with individual level worker risk factors. So your psychosocial risk in a business can be considered those three things as they relate to one particular worker in a role in a given environment, all the way up to, if we aggregate that, what is the risk to your business as a collective looking at those three things? So when I'm talking with clients about it, I'm saying, "Let's work more with the hazard exposures to categories. So rather than focusing too much on individual level risk factors, let's think about the work, where it's done, things to do with work design." Because they are the things that we have more control and we can adjust them more easily than necessarily the risk that might actually be attached to a person, per se.

Tony Morris:

So, Julia, back to you for a moment. Executives and leaders of businesses have a lot to think about, and they've got a lot of issues on their plate. From a legal perspective, why should executives and leaders of organisations do something about this risk now, particularly when, as you say, they may not have been attending to it previously?

Julia Sutherland:

Yeah. Thanks, Tony. I may give you an answer which is not particularly legal, which I realise is perhaps not what you're asking me for, but I'll give you a combination of an answer here. Obviously, there are work health and safety duties that apply at law. So legal compliance is part of the answer as to why you ought to be taking steps now. I mean, obviously, there, as I just said before, it's recognised that this is a risk area within a business and the safety regulators have recognised it.

Julia Sutherland:

So as a matter of compliance, businesses need to have regard to sexual harassment as they might some other physical risk that could be prevalent in their workplace. Of course, the employer or the person conducting a business or undertaking duty is to ensure, so far as is reasonably practicable, the health and safety of workers while they're at work in the business or undertaking. So, that's the duty I'm referring to there. There's also a duty on officers of PCBUs to take steps to ensure that the businesses are complying with their duties. And that's often referred to as the due diligence duty. So that's the legal compliance answer, Tony.

Julia Sutherland:

But when I'm asked this question by clients, and when we talk to boards and executive team members about this issue, I say, "Legal compliance is one part of the answer, but it's not the complete answer." And you only need to look at the Australian Human Rights Commission's report on the impact that this issue has had on women in our country to realise that the other reasons, which are significant, relate to how we treat our people. And how we treat our people is intertwined with what our corporate or business values are. So if you are a business that values your people, or even how the public may perceive you or your shareholders may perceive you, then that really is the reason of itself to take this issue or topic seriously and to start refining the way in which you look at it through that work health and safety lens.

Tony Morris:

Yeah, that's great. And, look, you mentioned officers there and you spoke about due diligence. I just wonder if you can let us know from your perspective, how do officers exercise due diligence in relation to a risk such as sexual harassment and psychosocial risk?

Julia Sutherland:

Yeah. Well, in many ways, the same as they do other risks. So what I tend to say to people who are officers or people who might report to officers is, "You need to understand your business and the key risks that arise in your business, and an assessment needs to be done of those. And if this is a particular issue which has been identified as a clear risk within your business, then information needs to be elevated to officers around the fact it has been identified as a risk, what the control measures are to either eliminate or minimise that risk so far as is reasonably practicable, and data that helps us assess whether the control measures are in fact working or whether they're not."

Julia Sutherland:

And that is very similar, if not the same as information that you might get on other critical risk and critical risk controls within your business that I think our officers and our businesses are more accustomed to in that physical risk environment. So it's just a similar sort of concept but to a different subject matter. And I'm starting to see some businesses actually doing that now. And that's leading to some great results in terms of trend identification, adjustments to control measures. And that's exactly what the legislative framework is designed to encourage.

Tony Morris:

So, Becs, organisations don't have endless amounts of resources, time to spend on everything. So from a practical perspective then, and from your experience, why should executives and leaders of organisations do something about this risk now?

Dr. Rebecca Michalak:

I really like that question because I think it enables us to consider this in a really opportunistic kind of fashion. So, yes, this is an area within safety or risk management that perhaps hasn't had quite so much attention, but rather than considering that as we have more work to do, or this is a threat, or anything else, is we can look at this as an opportunity. So, many businesses are across what they need to do to manage physical risks. And it's really about normalising psychological health and safety and psychosocial hazards and risks to bring them up to the same level as what we've been doing for many, many, many moons around physical health and safety type of risks. So we've got a real opportunity here. And we can then bed it down in the organisation using the same language and the same knowledge and learnings that we already possess.

Dr. Rebecca Michalak:

So it's really about, let's just bring this extra dimension in to health and safety way of thinking and being. And that also changes the game a little bit by going, "Well, instead of looking at this as a cost saving issue, let's look at what we can do in terms of value addness." The reality is if you get your psych health and safety risk management correct, you have a very, very thriving workforce. And ultimately, that's good for the bottom line and it's good for your shareholders and it's good for every other stakeholder as well.

Dr. Rebecca Michalak:

So by shifting the dial a little bit and doing that shift in perspective to go, "Actually, we don't want to engage so much in looking at these issues perhaps more under the traditional HR lens, per se." But if we put it under the workplace health and safety lens, we're kind of shifting from harm management into harm prevention, into productivity. We're starting to consider how these things might impact our social licence to operate. It brings it up into our ESG profile level, and there are some great things that we can achieve with that mindset. So I think it's really great we've got this opportunity, and organisations just really need to engage with it.

Tony Morris:

Yeah. And Becs, you mentioned HR and work health and safety, and often they're two separate management teams within an organisation. Is it your experience that these issues were more managed by HR in the past? But now we know it's a work health and safety issue, are there any issues there that you've seen in the market when you've been working with clients?

Dr. Rebecca Michalak:

Look, I have, and I think, again, we can look at it as an opportunity or we can look at the sort of negatives that go with that. Ultimately, my position is that HR as a discipline has some extreme value to add here to this conversation, to the way that we manage these risks and hazards. And safety brings some really valuable stuff to the table as well. So the ultimate utopia, I guess, around this, is having those two professions and disciplines working together. I think what we need to recognise, and perhaps this takes a bit of critical self-reflection, as Respect@Work pointed out on multiple levels, is that what we have been doing in this space hasn't been working.

Dr. Rebecca Michalak:

So I think we need to recognise that perhaps where it's been traditionally housed, which is more typically under that HR banner, that that really hasn't been getting us the results that we might like to get there. So again, shifting the perspective and putting it under a fresh lens and banner and seeing, okay, can we get further in this? We know that it's an issue in organisations. What we've been trying to do perhaps to manage it really hasn't been that effective, and the data is really clear on that. So let's do something new, better, different.

Julia Sutherland:

I agree with Becs that this is a fantastic opportunity, for functions that once perhaps worked together as one function have been split to now really work together again. Because I may have oversimplified or tried to suggest that managing psychosocial risk is the same as physical risk in my earlier answers. It's not, obviously, exactly the same. There are some really important differences and challenges with, I think, how we manage psychosocial risk. And our HR professionals are professionals in the area of managing people.

Julia Sutherland:

And so issues around how you deal with matters that could be confidential or sensitive, the intersection that there may be with some disciplinary matters, all of those things the HR people in our businesses are uniquely placed to assist with. Safety people will know how to do a risk assessment with their eyes closed. And you need that expertise. But it really, I think, is the most successful outcomes, I believe, will be achieved through those functions coming together and working together to get the best outcome for our people.

Tony Morris:

Imagine I'm a listener at the moment. I'm hearing about the importance of this. And imagine as that leader of the organisation, I'm of the view that we're not doing much about it at the moment. How would you advise an organisation or a leader like me to get a start and to start managing this risk proactively, now that I realise it's important?

Julia Sutherland:

Yeah, sure. And Tony, there's a few ways, I suppose, to start. One might just be a simple one of education. So there is an awful lot of guidance material. I mentioned the Safe Work Australia material. There's other regulators who've published materials. Just to get a feel for what is being spoken about in this area, that could be a starting point. But when we then get to the nitty-gritty of at an organisational level, how do we start this process? Well, really, we are talking about a risk assessment, a risk identification and assessment process which starts with the business understanding within its own sort of parameters what the risk is, in fact, within the business, what environmental factors might exist, what work related factors might exist, but really exploring, "How likely is it that sexual harassment will arise in our workplace? Where will it arise? How will it arise?" So really doing that neat assessment exercise.

Julia Sutherland:

The next step, of course, in that risk assessment process is once you've identified the risk, "Well, what are we currently doing to try to eliminate it, first of all? Or if we can't eliminate it," which may well be likely, "what reasonably practicable steps have we implemented right now to minimise those risks?" And then you'll populate your risk assessment with all of your risk control measures. And then it's really useful, as you know, Tony, and we know, to get together with the relevant stakeholders in the business and have a brainstormer. "But what else could we be doing? What are the other possible control measures?" and making then a decision of what's practicable in that context. So not every possible measure needs to be taken, but what's practicable? But all of that is a very traditional sort of risk assessment process that I've described, just looking at it through this particular topic.

Tony Morris:

Yeah, that's great. And Becs, as well as Julia has been advising, from a legal perspective, clients on these risks, you've been practically working with and helping organisations do exactly what Julia has been saying. What's been your observations? And what's practical that you can advise clients thinking about this risk and how they can do better?

Dr. Rebecca Michalak:

Look, again, it's a really great question. And I really like what Julia's already said around the risk assessment. I'll probably add a little layer above that is maybe to even take it out of that compliance kind of orientation. And some of the work I'm doing with clients at the moment is, yes, we've got in so far as reasonably practicable, but I like to push the envelope a little bit in that value added space and say, "As low as reasonably practicable will give you better bang for your buck," so to speak. So you get a greater return on investment. So I try to push organisations in that kind of direction.

Dr. Rebecca Michalak:

I think what's really important about the risk assessment is we need to have the courage to go looking for the unknowns. Okay? And we need to be willing to lift that piece of carpet or look in areas of our business that perhaps we just would prefer to just go, "Maybe if I could just leave that over there, that would be great." Let's be courageous. Let's look at the opportunity that exists here to go, "Okay..." We know through the research that it is undeniably happening pretty much everywhere in every organisation and every sector. And what we actually know about it is a real tip of the iceberg kind of perspective on just how prevalent it is.

Dr. Rebecca Michalak:

So a risk assessment that really does engage, particularly with your workers as stakeholders in this, and getting that feedback on, "Okay, what is really going on in this organisation?" Because I think if you've got no knowns, it's very difficult to design interventions or initiatives that are actually going to work. So again, if you're going to put something in place to try to mitigate or eliminate a risk, you want it to actually work. You don't want to be spending time, money, and resources doing things that don't work. So it's around evidence-based interventions, being willing to be courageous and really go looking around in your business in places you don't normally go and have a good look and then engaging with those stakeholders, because that's where the value added really is.

Julia Sutherland:

I agree with that too, Bec. And I think that one of the things that, again, we know very clearly from what has been surveyed so far, and the data available, is that people are reticent to report concerns of sexual harassment or sexual assault. And we also know that under the work health and safety legislation, there is a framework for consultation, so that we need to consult with our workers when we're assessing risk and working out what are the control measures we want to put in place. So those two things, I think, come quite neatly together, that there's this great opportunity to then, from a compliance perspective, you need to consult on risk. So you do that and you try to elicit information in a safe way as to what people's concerns actually are so you can truly try to address the problem from a prevention perspective.

Julia Sutherland:

The other thing, Tony, I forgot to mention before is, of course, once you've done all of that and you have your assessment and you've consulted upon it, none of these things, as we know, are set and forget. So there's a constant, we're in the process now where we're trying to grapple with assessment and management, but then we've got our plan or we've got whatever control measures we've decided upon, as I mentioned before when we were talking about officers. Then there needs to be that testing to make sure that it's still working and that despite what's happening, whether it's COVID or whatever other environmental change we might experience, that those control measures are still valid and are being enforced.

Tony Morris:

Yeah, that's great. And, look, Becs, I just had a question from what you said as well, and that is whilst every industry and client would be nuanced and very different, can you just give the listeners a taste of maybe what additional controls, just general controls, that a client might implement that they weren't doing before in relation to these risks? Can you give us a taste of some of those controls?

Dr. Rebecca Michalak:

Look, absolutely. So again, looking at, I come from quite a strong evidence-based practitioner background, and I think that if we think about what we've been doing in physical health and safety, we've got a fair amount that we sit at what I would call admin control level. What I've been doing with clients is saying, "Okay, what can we really do in that harm prevention space?"

Dr. Rebecca Michalak:

So using evidence around things like perhaps psychometric profiling, and so on and so forth, that give us a way to reduce the chance that certain people who are perhaps prone to hazardous behaviour don't come and join the organisation, to make sure that we're having that safety lens where behaviours' that could be unsafe for somebody, whether it's physically or psychologically unsafe or unhealthy, can be reported in that, "Let's discuss this as a hazard. Let's discuss it in terms of potential harm. And let's make sure that we're addressing these things before they escalate into, say, full-fledged sexual harassment." So I've been doing some work with clients, really challenging that status quo around admin level controls and saying, "Let's bring it up a level and bring it into that elimination space and use evidence to guide how we arrange those controls."

Tony Morris:

I'll just finally ask now, Julia and/or Becs, any last tips for listeners that are leaders within organisations about this risk?

Julia Sutherland:

I think the only thing I would add, Tony, which probably hopefully has come through in some of our other comments, is that actually I would refer leaders to see this as a really exciting opportunity to influence positive change in their businesses, and to, as Becs was saying, just get in there, see what's there, because you're better off knowing than not knowing, and using this as an opportunity to really explore positive change in your business and not to be worried about what it might mean from a legal risk perspective. Because from a legal risk perspective, you're actually better off knowing what the issue is and tackling it.

Tony Morris:

Becs, any last tips from you?

Dr. Rebecca Michalak:

I guess I'd just like to reinforce what we've discussed all the way through, really, is that rather than considering this another issue we need to deal with, which it is, is to look at it as we can really leverage this, what's going on now, in terms of increased regulation and attention, and so on and so forth, to actually really value add to the business. And then, through doing that, value add to our clients, to our employees, to society more broadly. So I think if we can get into that perspective of harm prevention and looking at it is better that we know these things and we can address them. They're not going away. And we can start that journey. And if you don't have the expertise in-house, there are people who can come and help you with it. So we can get on that journey of just do things new, better, difference. Let's be evidence-based and let's really try to put it in that value add opportunity kind of lens.

Tony Morris:

Becs and Julia, thank you very much for joining me today.

Julia Sutherland:

Thanks, Tony.

Dr. Rebecca Michalak:

Thank you so much, Tony.

Tony Morris:

Thank you for listening to this podcast episode in our mini-series about work health and safety trends. As you've just heard, work health and safety has becoming increasingly complex. There are multiple legal issues and risks to manage, which can have a direct impact on leaders, their people, and their organization's productivity. If you'd like to discuss how such legal and risk issues impact your organisation, please feel free to get in touch with us at Ashurst.

Tony Morris:

This episode is the latest in Ashurst's Business Agenda Podcast. To find out more about our podcast, head over to www.ashurst.com/podcast. To ensure you don't miss any future episodes, subscribe to this podcast via Apple Podcasts, Spotify, or your favourite podcast platform. And while you're there, check out our other episodes and feel free to leave a rating or a review. Thanks again for listening, and goodbye for now.

Host:

If you enjoy Ashurst Business Agenda, why not check out our other two podcast series as well? Ashurst Legal Outlook explains the emerging legal trends and requirements of our fast changing world. And ESG Matters @ Ashurst reveals how business leaders are rising to mounting environmental, social, and governance challenges. You can listen and subscribe to Legal Outlook and ESG Matters wherever you get your podcasts.