Sexual harassment is harmful, unlawful and, in some instances, a criminal offence. Its impact on individuals and employers can be significant.
The Equal Opportunity Act 2010 defines what behaviours constitute sexual harassment in public life, including in the workplace. Sexual harassment is unwelcome behaviour of a sexual nature that a reasonable person would expect would make another person feel offended, humiliated or intimidated. Anyone can perpetrate or experience sexual harassment. It may be physical, spoken or written and can occur even when the perpetrator does not intend it.
Under the Equal Opportunity Act 2010, organisations including Victorian government departments must take reasonable and proportionate measures to eliminate sexual harassment in their workplaces.
This audit examines whether Victorian government departments provide workplaces that are free from sexual harassment. The departments are:
- Department of Environment, Land, Water and Planning (DELWP)
- Department of Education and Training (DET)
- Department of Health and Human Services (DHHS)
- Department of Justice and Community Safety (DJCS)
- Department of Jobs, Precincts and Regions (DJPR)
- Department of Transport (DoT)
- Department of Premier and Cabinet (DPC)
- Department of Treasury and Finance (DTF).
We looked at whether departments:
- have effective measures to prevent and report on sexual harassment
- respond to complaints of sexual harassment in a fair and effective manner.
The PMS is an annual survey run by the Victorian Public Sector Commission. It invites all employees in participating Victorian public sector organisations to have their say on how well their organisation, leaders and colleagues demonstrate public sector values and employment principles.
No department is free from sexual harassment and while they are working to improve this, departments can still do more. While departments express a clear message that sexual harassment is unacceptable, the 2019 People Matter Survey (PMS) found that one in 14 respondents experienced sexual harassment in the previous 12 months.
Departments make complaint channels available, but staff rarely use them. Our survey of public service staff found that this is because staff lack faith in the complaints system, fear the consequences, or perceive that the behaviour they experienced is not serious enough. Departmental training currently does little to address this.
Managers are often the ones to handle informal complaints of sexual harassment within their team, yet few receive training to help them do this. Further, departments do not generally have oversight as to how informal complaints are managed.
We reviewed formal complaints and found that for most, the departments' complaint handling process was fair and effective. However:
- The process for dealing with formal complaints can be lengthy and is not transparent.
- Departments have differing views and practices as to what information they can share with the complainant about investigations, which can lead them to share very little.
- We also saw differences between departments' threshold for investigating and making findings of misconduct, as well as examples of poor record keeping.
Poor handling of both formal and informal complaints leads to staff dissatisfaction, negative impacts on complainants and others and may also lead to organisational liability.
Prevalence of sexual harassment
Through the PMS run by the Victorian Public Sector Commission (VPSC), departments have data on the prevalence of sexual harassment in their workforce. The survey is anonymous, which encourages staff to be open about their experiences. Response rates at departments are high (between 43 and 82 per cent), which means the data is reliable.
In the 2019 PMS, 7 per cent of departmental respondents said they had experienced sexual harassment in the past 12 months. This is more than 1 400 employees.
This has reduced from 11 per cent of respondents in the 2016 survey, which is positive. However, it is too soon to determine if this decrease is a trend, as only four years of data is available.
Employees at high risk
Anyone can experience sexual harassment, but the PMS results show that the following types of respondents are at much greater risk:
- those with a self-described gender identity (26 per cent experienced sexual harassment)
- women aged 15 to 24 (14 per cent experienced sexual harassment)
- lesbian, gay, bisexual, trans and gender diverse, intersex, queer and questioning (LGBTIQ) persons (13 per cent experienced sexual harassment)
- Aboriginal and Torres Strait Islanders (12 per cent experienced sexual harassment)
- those who earned less than $75 000 (11 per cent experienced sexual harassment).
Types of sexual harassment experienced
Sexual harassment can take many forms. However, the 2019 PMS reports that the most common experiences were:
- intrusive questions about a person's private life or comments about their physical appearance
- sexually suggestive comments or jokes that offend a person (either in a group or one-on-one situation).
Departments must address all forms of sexual harassment, as research has shown that these behaviours can have significant negative impacts on individuals.
Sexual harassment can significantly affect employees' mental and physical health. We conducted our own survey of departmental employees and received 4 811 responses. Twelve per cent of respondents who experienced sexual harassment said it negatively affected their:
- mental health and caused them stress
- self-esteem and confidence
- employment, career or work
- relationship with their partner, children, friends or family.
For organisations, sexual harassment may reduce workforce morale, and increase absenteeism and turnover. It can also expose departments to legal liability and be costly to investigate.
Responding to complaints
Departments have adequate processes to accept complaints, but they need to do more to address underreporting of sexual harassment.
Of the PMS respondents who said they experienced sexual harassment, only 3 per cent said that they made a formal complaint.
Our survey suggests that the top reasons why staff do not make complaints about sexual harassment are that they:
- did not think it was serious enough
- believed there would be negative consequences for their reputation and career
- did not think it would make a difference
- did not believe the complaint would result in any action.
While some departments have implemented strategies to encourage staff to report complaints, it is too soon to assess whether this has improved reporting.
Informal and formal responses
Departments have both formal and informal processes to respond to sexual harassment complaints, which is good practice. In some cases, inappropriate behaviour (including sexual harassment) can be addressed at the team or workgroup levels, and not proceed to a formal investigation.
However, when departments address sexual harassment informally, there is little central oversight or knowledge of these instances and their handling. This also meant we could not assess how well departments respond to informal complaints.
Managers are often the ones to respond to informal sexual harassment complaints. There is limited training for managers on responding to sexual harassment complaints, which is a missed opportunity particularly given the sensitivity of these issues.
Departments receive a small number of formal complaints. We found variable practice in how departments handle these complaints. Poor practices include incomplete record keeping and limited communication with complainants, inconsistencies in the handling of potential criminal matters, lack of procedural fairness, and inconsistencies in investigations.
Documentation and record keeping
Departments do not always keep accurate and complete records on how they have handled formal sexual harassment complaints. This ranged from minor to some more serious instances, such as where investigation reports were missing.
Proper record keeping within the case files ensures departments comply with the Public Records Act 1973, and the absence of records puts the department at risk if its decisions are challenged.
Most departments do not have a sophisticated complaints management system. They rely on often outdated, mostly manual systems, which do not allow for easy registration, categorisation and reporting of complaints. Two departments were unable to quantify how many sexual harassment complaints they have received due to a failure to categorise sexual harassment complaints consistently, and having multiple, varied databases for central and regional staff.
Responding to criminal matters
Departments do not have a common understanding about how to handle alleged sexual harassment that may constitute a criminal offence, particularly in relation to engaging with Victoria Police before starting an investigation.
VPSC's guidance states that if an allegation appears to be relevant to the police, the department is obliged to report it to the police regardless of whether the complainant has done so. We found two cases where departments did not do this.
Poor communication with complainants
Making a complaint of sexual harassment can be a stressful experience that can negatively affect an employee's mental health and wellbeing.
Departments providing regular communication and information to the complainant helps complainants to feel part of the process.
We found variable practices in this regard. Some departments provided complainants with a senior officer within the department to offer support. Other departments had limited documentation as to whether they offered support or provided updates on the investigation.
All departments have communicated to their staff about the EAP on their intranet and in policies. In almost half of the investigation files we reviewed, departments did not document offers of support, such as the EAP, to the complainant in their investigation files. As such, we could not confirm that they occurred.
Departments give complainants varying levels of detail on the outcome of investigations, due to concerns for the subject's privacy. There is also limited guidance and uncertainty around how much information can be provided. Our survey highlighted that failure to inform the complainant can result in dissatisfaction in the complaint process.
Preventing sexual harassment
In November 2018, VPSC introduced the Model Policy for the Prevention of Sexual Harassment in the Workplace (the model policy). In general, departments have clear and accessible policies on sexual harassment that align with VPSC's model policy.
Some policies miss elements that the model policy includes, such as referring to the importance of bystander intervention and outlining external complaint avenues. As the VPSC introduced the model policy in November 2018, departments are still updating their sexual harassment policies to align with it.
DJCS and DTF do not have standalone sexual harassment policies, but instead include it in other documentation, such as appropriate workplace behaviour policies. This may reduce the visibility of sexual harassment guidance.
Departments include sexual harassment training in their staff induction modules, but not all staff have completed this training. Our survey found only 23 per cent of respondents said they completed training on sexual harassment at induction, and 42 per cent said that they had never received sexual harassment training.
This is a missed opportunity to educate staff and may also expose departments to legal liability if sexual harassment occurs.
The content of training is also important. Bystanders play an important role in addressing and preventing sexual harassment, but most departments do not provide detailed training to help bystanders understand their role.
Training is important for managers as well as staff. Respondents to our survey highlighted issues with the way that their managers handled their complaint. Most departments do not offer specialised training for managers on how to deal with sexual harassment complaints.
At seven of the eight departments, senior leaders have sent at least one communication in 2018 outlining that sexual harassment in the workplace is unacceptable and signalling their commitment to its prevention.
In our survey, 71 per cent of respondents agreed that their department communicates zero tolerance for sexual harassment.
This is positive. Departments should continue to communicate at least annually with staff and express a commitment to eliminate this behaviour in the workplace. They may also consider further, targeted communication based on risk factors.
Addressing risk factors
The PMS gives departments information on high-risk teams, cultures and leadership within their workplace. Most departments prepare action plans to address key PMS findings, but these plans do not focus on groups at higher risk of sexual harassment, such as those with a self-described gender identity, LGBTIQ employees, women and Aboriginal and Torres Strait Islander employees.
We recommend that all departments:
1. introduce mandatory training for all staff on sexual harassment at induction and at least every two years. This should include at a minimum:
- practical guidance to help bystanders intervene
Grey area behaviours are behaviours that some employees may find offensive and others may not. These might include more subtle and nuanced forms of sexual harassment.
- examples of less overt forms of sexual harassment and 'grey area' behaviours
- reference to the relevant legislation, definition and that sexual harassment is unlawful
- complaint channels (including external avenues)
- consequences for the alleged harasser and the department, including legal liability
- impact of sexual harassment on employees
- positive duty to eliminate sexual harassment and victimisation in the workplace (see Section 4.3)
2. provide specific training to all managers on responding to complaints of inappropriate behaviour, including sexual harassment complaints. This should:
- include training on the department's positive duty to eliminate sexual harassment and victimisation
- be delivered to all new managers and repeated at least once every two years
- be delivered face-to-face if possible (see Section 4.4)
3. develop a targeted campaign to encourage complaints of inappropriate behaviour, including sexual harassment, and increase staff confidence in the complaints system. This should include allowing staff to report complaints anonymously, and targeted campaigns for high-risk groups (see Section 3.2)
4. improve record keeping practices, including:
- providing guidance to staff who respond to complaints of sexual harassment on their record keeping obligations under the department's policy and the Public Records Act 1973
- performing spot checks at least annually to ensure records for formal complaints are appropriately maintained (see Section 3.3)
5. securely store complaint documentation and record and categorise the number of sexual harassment complaints in a confidential and searchable format to ensure:
- complaint files can be located using a unique identifier found in the register
- the register records the name of the subject and work area, the date the complaint was received and closed, and the outcome of the complaint (see Section 3.2)
6. implement a checkpoint during the complaints process to determine whether the department needs to report a sexual harassment complaint to Victoria Police (see Section 3.3)
7. ensure that their senior leadership communicate at least annually a commitment to eliminate sexual harassment (see Section 4.5).
We recommend that the Department of Justice and Community Safety and the Department of Treasury and Finance:
8. introduce a standalone sexual harassment policy that incorporates better practice elements in the Victorian Public Sector Commission's model policy (see Section 4.2).
We recommend that the Victorian Public Sector Commission:
9. develop guidance for departments on investigating matters with no independent witnesses (see Section 3.3)
10. review and expand guidance for departments on reporting matters to Victoria Police (see Section 3.3)
11. develop guidance to ensure that departments understand the level of information they can share with complainants and others when the investigation concludes (see Section 3.4).
We recommend that the Victorian Equal Opportunity and Human Rights Commission:
12. develop guidelines on:
- how to address and respond to anonymous complaints
- what to do if a victim does not want to proceed
- what to do if a subject resigns before the conclusion of an investigation
- how to refer complainants to external bodies (see Part 3).
Responses to recommendations
We have consulted with DELWP, DET, DHHS, DJCS, DJPR, DoT, DPC, DTF, VEOHRC, VPSC and WorkSafe Victoria, and we considered their views when reaching our audit conclusions. As required by the Audit Act 1994, we gave a draft copy of this report to those agencies and asked for their submissions or comments.
The following is a summary of those responses. We include the full responses in Appendix A.
- All departments accept the recommendations directed to them and have produced action plans detailing how they will address them.
- VPSC and VEORHC accepted the recommendations directed to them.
- WorkSafe Victoria did not comment on the draft report as there were no recommendations or findings directed to it.