Parallel enforcement strategy on work-related sexual harassment

About this strategy

Purpose

The Parallel Enforcement Strategy (Strategy) explains how WorkSafe Victoria (WorkSafe) and the Victorian Equal Opportunity and Human Rights Commission (the Commission) will work together to regulate work-related sexual harassment.

This Strategy outlines the differences in enforcement options available to WorkSafe and the Commission, our complementary and potentially overlapping roles, and how our organisations can better coordinate how we respond to work-related sexual harassment in Victoria. The primary audience for this Strategy is the staff at WorkSafe and the Commission who will be responsible for implementing the four actions listed in this document. However, it will be made publicly available on our websites.

Background

This Strategy was designed to respond to one element of Recommendation 12 of the Victorian Government's 2021 Ministerial Taskforce on Workplace Sexual Harassment (the Taskforce). You can find out about the Taskforce and their recommendations at the Ministerial Taskforce's webpage.

The relevant part of Recommendation 12 proposed that:

'WorkSafe lead the development and implementation of a joint enforcement strategy with VEOHRC specific to workplace sexual harassment incidents (and increasing WorkSafe's enforcement activity, including enforcing the existing prohibition on discrimination under s76 of the OHS Act relating to cases of workplace sexual harassment) to ensure a consistent and coordinated enforcement approach across the two regulators.'

The Victorian Government accepted this recommendation and committed that:

'VEOHRC and WorkSafe will work together to develop a workplace sexual harassment enforcement strategy, that formally articulates the collaborative approach of jointly regulating workplace sexual harassment. This will be informed by the consultation and by outcomes of the prevention review (recommendation 7) and consider the differences in powers of right of entry and any limits on information sharing between WorkSafe and VEOHRC.'

This Strategy recognises comments made by the Australian Human Rights Commission's Respect@Work: Sexual Harassment National Inquiry Report (2020) which found that people were confused about the role of different regulators. The report found that, where different regulators offer different benefits, regulators should consider how to:

• improve existing frameworks responding to sexual harassment
• make the most of the expertise of regulators, rather than duplicating effort (see page 26 of the report).

It is underpinned and supported by a Memorandum of Understanding (MOU) between WorkSafe and the Commission. This MOU makes a number of commitments including:

• sharing data which helps target prevention efforts
• sharing knowledge, insights and best practices to eliminate workplace sexual harassment
• jointly conducting or promoting education, awareness and promotional campaigns
• providing clear and consistent information to the public regarding our respective roles
• minimising the potential for duplication of effort between WorkSafe and the Commission.

This Strategy is one of several pieces of work being done jointly or separately by WorkSafe and the Commission to respond to recommendations of the Taskforce. Other work includes:

• WorkSafe developing a strategic action plan targeting high-risk industries and population groups disproportionately affected by work-related gendered violence (Recommendation 2, delivered in 2023)
• WorkSafe developing industry-specific guidance on workplace sexual harassment in consultation with the Commission and other stakeholders (Recommendation 6, under development in 2024)
• Jointly reviewing WorkSafe's and the Commission's prevention activities (Recommendation 7, delivered in 2023)
• WorkSafe increasing resourcing and capabilities of advisors, inspectors and investigators to focus on workplace sexual harassment (Recommendation 12, delivered in 2023.
• WorkSafe developing a specific work-related sexual harassment and gendered violence training for Health and Safety Representatives (Recommendation 25, delivered in 2022)

Overview

This Strategy commits WorkSafe and the Commission to four actions:

1. Share information which increases our joint capability to regulate work-related sexual harassment.
2. Build our understanding of each other's jurisdictions and enforcement functions.
3. Design an improved process for referring people between WorkSafe and the Commission.
4. Provide information to improve community understanding of what WorkSafe and the Commission can do in response to work-related sexual harassment.

These four actions are discussed in more detail in the 'What we will do' section below.

All four actions will help us better prevent and respond to sexual harassment in Victorian workplaces:

• Action 1 will give each regulator a more complete picture of sexual harassment occurring in Victorian workplaces, and how the other regulator is responding. This helps both of us target our prevention efforts.
• Action 2 will help us better understand how our powers complement each other, and how we can work together.
• Action 3 will ensure more people understand the options available to them, speak to the appropriate regulators for their situation and receive the help they need in a trauma-informed way.
• Action 4 will lead to more people understanding our roles in responding to sexual harassment, leading to reports being made to the appropriate regulator to better meet people's needs.

This Strategy does not affect the ordinary discretion of WorkSafe or the Commission to exercise our compliance and enforcement powers.

Given the different legal powers, rights of entry and confidentiality provisions of WorkSafe and the Commission to investigate and prosecute breaches, we will not jointly undertake investigations, inspections, or prosecutions. These functions will be managed separately by both regulators.

You can find out more about how we exercise these powers by looking at WorkSafe's Compliance and Enforcement Policy and the Commission's Equal Opportunity Act 2010 investigations policy.

Consultation

This Strategy has benefited from guidance and feedback from a broad range of subject matter experts who represent people disproportionately affected by work-related sexual harassment and gendered violence. This includes unions, community organisations, community legal centres and members of the legal profession. We appreciated the opportunity to hear from everyone who generously participated in our consultations.

This Strategy was informed by:

• stakeholder consultation undertaken by WorkSafe and the Commission as part of Recommendation 7 of the Taskforce (Prevention Activity Review) in 2023, and in accordance with commitments made in response to Recommendation 24
• two stages of consultation specific to the Strategy in 2024, during which feedback was given in writing or consultation meetings
• consultation between WorkSafe and the Commission during 2023 and 2024.

About us

The Commission

The Victorian Equal Opportunity and Human Rights Commission is an independent statutory organisation with responsibilities under Victoria's human rights laws. These include the Equal Opportunity Act 2010 (Equal Opportunity Act), the Racial and Religious Tolerance Act 2001, the Charter of Human Rights and Responsibilities Act 2006 (Charter) and the Change or Suppression (Conversion) Practices Prohibition Act 2021.

The Commission helps Victorians understand their human rights and provides services to people who have experienced discrimination, sexual harassment, victimisation, vilification and change or suppression practices. It also provides information and services to duty holders such as employers, to better understand their obligations and how to comply with them.

Under the Equal Opportunity Act, some of the ways the Commission regulates work-related sexual harassment are:

• investigations, including for a breach of the positive duty to take reasonable and proportionate steps to eliminate sexual harassment as far as possible, where threshold criteria under the Equal Opportunity Act are met
• publication of guidance for employers such as the Guideline: Preventing and responding to workplace sexual harassment – Complying with the Equal Opportunity Act 2010

• education activities including sexual harassment e-learning programs about sexual harassment and workplace equality
• a free and confidential enquiries service available to all members of the public including employees and employers
• online resources and information such as a sexual harassment support and response tool for employees and employers
• an online anonymous reporting form to help us understand community experiences of sexual harassment
• a free and confidential dispute-resolution service to conciliate reports of sexual harassment that are made to the Commission
• legal interventions into court and tribunal cases that raise human rights and equal opportunity issues, including sexual harassment matters.

WorkSafe

WorkSafe is Victoria's health and safety regulator and workplace injury insurer.

WorkSafe responds to work-related sexual harassment by:

• investigating and enforcing the law in response to breaches of the Occupational Health and Safety Act 2004 (OHS Act)
• investing in expertise, including through establishment of a Psychological Health and Safety Specialist team (who provide advice to assist inspectors, as well as influencing broader organisational strategy), the Psychosocial Advisory Team and the Psychosocial Inspectorate
• publishing guidance on how the OHS Act applies to work-related sexual harassment
• developing campaigns like the 'Let's be very clear' campaign on sexual harassment, and the 'It comes in many forms' campaign on work-related gendered violence
• delivering the WorkWell Respect Fund and Network. These programs provide funding for industry to develop evidence-based strategies to prevent work-related gendered violence
• providing financial assistance for injured workers and helping them return to work.

How we define sexual harassment

Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or unwelcome conduct of a sexual nature, which in the circumstances could reasonably be expected to make the other person feel offended, humiliated or intimidated. It can be physical, verbal or written (including through online spaces and social media platforms).

In Victoria, the legal definition of sexual harassment comes from section 92 of the Equal Opportunity Act. This definition is used by both WorkSafe and the Commission.

The Equal Opportunity Act prohibits sexual harassment in certain areas of public life, including at work.

This Strategy is about work-related sexual harassment. For example, behaviour that happens:

• in a workplace
• at a remote workplace, including if the person's workplace is their home
• during someone's employment
• at work-related activities or events
• between people who work together or share the same workplace
• by phone, email, social media or online in the course of employment.

Sexual harassment comes in many forms. Some examples can include:

• comments about someone's private life or the way they look
• sexually suggestive behaviour, such as leering or staring
• brushing up against someone, touching, fondling or hugging
• sexually suggestive comments or jokes
• displaying offensive images or objects
• repeated and unwanted questions about a person's sexuality or sex assigned at birth
• repeated requests to go out
• requests for sex
• sexually explicit emails, text messages or posts on social media
• sexual assault.

It can be something that happens once or more than once.

How sexual harassment affects people

Sexual harassment and work-related gendered violence are common and known causes of physical and mental injury. They present risks to all employees, whether they experience it directly or witness it happening.

Both can have impacts including:

• feelings of isolation
• loss of confidence and withdrawal
• physical injuries as a result of assault
• depression
• anxiety
• suicide
• post-traumatic stress disorder
• social isolation, family dislocation
• stress
• financial loss or economic disadvantage
• cardiovascular disease, musculoskeletal disorders, immune deficiency and gastrointestinal disorders (for example, as a result of stress).

We know that sexual harassment disproportionately affects some people, for example, women, young people, people with a disability, LGBTIQA+ people, culturally and racially marginalised people and First Nations people.

Sexual harassment is also more prevalent in particular industries. For example:

• accommodation and food services
• arts and recreation
• education and training
• electricity, gas, water and waste services
• financial and insurance services
• health care and social assistance
• information, media and telecommunications
• legal services
• mining
• public administration and safety
• retail trade.

For more information about sexual harassment, you can refer to:

Terminology used by WorkSafe and the Commission

This Strategy uses the terms 'victim-survivor' and 'complainant'. This reflects the different functions of WorkSafe and the Commission and the different terms we use.

We acknowledge that the terms 'victim-survivor' and 'complainant' may not capture the experience of all people who have experienced sexual harassment, or their purposes for speaking to WorkSafe or the Commission.

Victim-survivor

'Victim-survivor' is a term the Commission uses to describe someone who has experienced sexual harassment.

This term is used to acknowledge that not everyone who has been sexually harassed views themselves as a 'victim'. It also recognises that some people may think the word ‘'survivor' does not emphasise strongly enough that a person who sexually harasses someone is at fault.

Complainant

WorkSafe uses the term 'complainant' to describe anyone who has reported sexual harassment to WorkSafe. This includes a person who has been sexually harassed, or anyone else reporting the harassment. This might include a colleague, Health and Safety Representative, union, a friend or a family member.

The Commission uses the term 'complainant' to describe anyone who has reported sexual harassment to the Commission for the purpose of dispute resolution. The term 'enquirer' is used to describe anyone who contacts the Commission's Human Rights Information and Enquiries service for information about sexual harassment protections.

What we will do

Action 1: We will share information to increase our capability to regulate work-related sexual harassment

WorkSafe and the Commission gather information about people’s experience of sexual harassment through our complaints and information services and other functions. By sharing information, we both become more capable of understanding where sexual harassment is occurring, the ways in which it is occurring and how to respond to it.

As part of our MOU, WorkSafe and the Commission share de-identified data about work-related sexual harassment with each other every six months or otherwise when requested.

We are each bound by privacy legislation and secrecy provisions in the respective laws under which we work. There are limits to the information we can share with each other and differences in how we can undertake enforcement work. However, WorkSafe currently shares data with the Commission about:

• the number of calls the WorkSafe Advisory Service receives about work-related sexual harassment
• the industries relating to claims.

The Commission shares data with WorkSafe about:

• the number of enquiries or complaints received by the Commission's Human Rights Information and Enquiries and Dispute Resolution services relating to sexual harassment
• the industries the complaints relate to
• the gender of people making enquiries and complaints, if self-identified (this data is aggregated and de-identified).

Data-sharing enables each organisation to increase our capability to regulate sexual harassment in Victoria, helps us to identify areas of overlapping concern and informs our prevention and enforcement activities. Our prevention activities are also supported by the Prevention Activity Review conducted in 2023 and joint commitments under the MOU.

We will use our existing commitment to data-sharing to advance the objectives of this Strategy.

We will hold meetings every six months and, subject to our privacy and secrecy obligations, we will share information about:

• industries where we are seeing the most work-related sexual harassment and other trends
• current enforcement activities of each organisation to respond to work-related sexual harassment
• any other work each organisation is doing in relation to work-related sexual harassment and how we can best support each other.

Sharing this information will help us:

• target our own prevention activities (including campaigns, guidance, inspections and investigations)
• consider any opportunities to collaborate on prevention and enforcement work which could assist in helping employers create safer workplaces for their employees.

These meetings will also be used to review how WorkSafe and the Commission are working together and consider opportunities for continuous improvement.

Action 2: We will build our understanding of each other's jurisdictions and enforcement functions

To work together effectively, the Commission and WorkSafe need to have a good understanding of what each organisation can do to regulate sexual harassment.

To improve that understanding, we will:

• share information between WorkSafe and Commission staff on each organisation's powers and functions to regulate work-related sexual harassment. This information will be provided as needed on request or at our regular meetings (every six months)
• share relevant educational material such as digital education programs, resources, or promotional campaigns relating to our powers and functions
• share insights and best practices relating to regulating sexual harassment including information on intake and triage, information-sharing, and service delivery processes we each follow when responding to work-related sexual harassment
• share information on our broader enforcement priorities (for example, information on which breaches of the law are most likely to prompt investigations or enforcement action).

Doing this will give each organisation a better understanding of:

• how our powers and functions complement each other
• how we can work together
• when a person seeking advice might benefit from being referred to the other organisation.

Action 3: We will design an improved process for referring people between WorkSafe and the Commission

During the consultation for this Strategy, stakeholders told us that most people do not know how the Commission or WorkSafe can help them if they have experienced work-related sexual harassment.

We heard about the many barriers that might deter victim-survivors/complainants from seeking help including:

• fear of not being believed
• fear of retaliation
• stigma
• precarious employment or migration status
• the trauma and/or burden of re-telling an experience
• lack of trust or knowledge about an organisation
• uncertainty about the use of interpreter services
• concerns about what happens to personal information.

Some people who contact WorkSafe seeking help might be better placed contacting the Commission, or vice versa. Some people might benefit from engaging with both organisations.

WorkSafe and the Commission each have processes in place to ensure our services are safe, trauma informed and accessible. We can each already refer people between our organisations. However, we think we can improve the way we refer between each other.

We will work together to design a referrals process that captures and expands on our current practice, centered around the following principles.

The referral process is trauma informed, safe and accessible

This includes:

• ensuring all calls to WorkSafe and the Commission relating to sexual harassment are handled by staff trained in trauma informed practice, gendered violence, and inclusive practices for communities who are disproportionately impacted by sexual harassment
• giving priority to the safety, support needs and wellbeing of the victim-survivor/complainant, and/or any other person seeking help
• ensuring the person seeking help has as much control as possible over how their complaint is handled
• reducing the need for a person to tell their story multiple times to different people
• making accessibility adjustments wherever necessary, including the use of interpreters, being flexible in how information is provided, or the time of and mode of contact
• using culturally safe practice and acknowledging cultural load, stigma and the barriers to accessing our services especially for people who are at higher risk including culturally and racially marginalised people, LGBTIQA+ people, First Nations people and people with disability
• ensuring contact leading up to a referral is handled by the same staff member wherever possible, to ensure continuity of case management
• ensuring the referral process between WorkSafe and the Commission has a mechanism to flag priority referrals.

People can make an informed choice about whether they want a referral

This includes:

• providing clear information about what the Commission and/or WorkSafe can and cannot assist with to enable a person to make an informed decision about being referred
• providing information about what the referral process will involve
• being transparent that we do not have the capacity to facilitate on-the-spot referrals or provide crisis services, but that we can be clear about how long the referral process will take, and when they are likely to be contacted
• offering information about other organisations that may also be able to assist (such as a legal service, community support service, other government agencies, medical and counselling services, unions, or Victoria Police) where appropriate
• giving people time to consider their options. If someone does not want to engage further at the time, we will let them know how to contact us again in the future.

People have a choice about how they are referred

This includes:

• offering a warm referral process
• explaining that a person is free to contact the other organisation themselves if they do not want a warm referral to be made
• providing people information on how to contact the other organisation if they do not want us to refer them.

A warm referral is where either WorkSafe or the Commission contacts the other organisation on the person's behalf, with their consent, in relation to their needs. The referring organisation can provide the second organisation with information about the person’s needs and what outcome they are seeking.

People will know how their information will be handled

This includes:

• clearly explaining what information a person needs to disclose to allow a referral to be made
• explaining how personal information may be stored according to our own privacy policies and what information will be shared between WorkSafe and the Commission
• explaining that people are free to contact us anonymously, decide to withhold some personal information or have someone contact us on their behalf (for example, a union, colleague or friend)
• making it clear that we may need their personal information and consent to provide certain services
• explaining that during any enforcement or dispute resolution process we will continue to provide information to victim-survivors/complainants about how their information will be used, who will be able to access that information, explain when they may need to be identified or when their information may need to be disclosed to a third party
• providing information about legal protections against victimisation (for example, those under section 76 of the OHS Act, under the Equal Opportunity Act or under the Racial and Religious Tolerance Act).

We will provide this information to enable a person to make an informed decision about whether to disclose their personal information.

WorkSafe will explain that, during a prosecution, WorkSafe may be required to disclose information about a complainant, even if they do not want WorkSafe to. This is because, in criminal trials, the prosecution has a duty to disclose all relevant information to the case against an accused. This can include statements made by the victim-survivor/complainant, records of conversations they have had with WorkSafe staff and, in some circumstances, relevant health records held by WorkSafe. WorkSafe’s Family Liaison Officers work closely with victim-survivors/complainants throughout the investigation and prosecution to ensure that they understand when disclosure may occur.

Action 4: We will provide information to improve community understanding of what WorkSafe and the Commission can do

We want to increase the number of people in the community who know that the Commission and WorkSafe can respond to work-related sexual harassment, and the powers and functions of each organisation. This will ensure that more people get the support they need, when they need it.

We heard through the consultation that information should be accessible for people who are more likely to experience work-related sexual harassment. Information should also include clear options or steps, help to explain how to access support, be offered in a range of formats where possible, and be tailored to the needs of diverse community members.

We will create resources for the community, which contain:

• a definition of sexual harassment
• what the Commission and WorkSafe can do in response to work-related sexual harassment in Victoria and how to access our services
• general information about the processes and timeframes for our services
• what outcomes a person can achieve if they come to either of us for help
• brief general information about other relevant organisations (such as Victoria Police, the Fair Work Commission, the Australian Human Rights Commission and others), their roles and what they can do in response to sexual harassment.

The resources will include a simple flowchart outlining pathways to our services. They could be used by people seeking help, or people seeking a greater understanding of our enforcement pathways. The resources will be informed by further stakeholder consultation.

We know that there are significant barriers for many people to report sexual harassment, including concerns that the person harassing them or someone else at work finds out. For this reason, the resources will explain that:

• a person's personal information, or information that they give us about work-related sexual harassment, will not be shared between WorkSafe and the Commission without their consent
• information will not be shared with the employer without their consent except in limited circumstances which we will explain in the resource
• Victorian law protects them from victimisation in some circumstances.

We will consult with stakeholders representing people who are disproportionately impacted by sexual harassment to ensure the resources are clear, inclusive and accessible. We intend to translate the resources into relevant community languages and will consider other ways to ensure accessibility.

When resources are ready, we will distribute them to the community in various ways, including:

• putting them on our websites
• asking our contacts in unions and employer representatives to distribute the resources to their members
• sending them to relevant community organisations.

Implementation and review

Work on implementing all four actions is underway and the Strategy will be operational by mid-2025.

WorkSafe and the Commission will use our existing meetings between now and mid-2025 to develop internal processes and deliver commitments under the four actions.

This will include holding:

• regular working group meetings
• six-monthly information sharing meetings attended by a cross section of staff from both organisations including front-line staff
• ad hoc meetings as required.

We will work together to develop processes to:

• strengthen our data-sharing arrangements, in line with Action 1
• share information with each other on our intake, service delivery processes and enforcement activities in line with Action 2, and subject to our respective confidentiality and information-sharing limitations
• improve our referrals process in line with Action 3
• develop community resources in line with Action 4.

We will use an iterative development process to implement the Strategy. We will design internal processes under Actions 1-3 with our operational teams, test them, and seek feedback from our staff. We will monitor and evaluate effectiveness and will adapt our processes based on feedback and aim for continuous improvement.

We will develop community resources under Action 4 together and incorporate feedback from stakeholders wherever possible through a consultation process.

We will review this Strategy in one year from its publication, and again when we next review the MOU between WorkSafe and the Commission, in December 2026.