Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697636882175.pdf (Australia)
Question on notice no.

5 Portfolio question number: SQ19-000007 2018-19 Additional estimates Education and Employment Committee, Education and Training Portfolio Senator Deborah O'Neill: asked the Department of Education and Training on 21 February 2019— Senator O'NEILL: So what is the procedure?

This is the policy document that I've asked you several times to table for us about when somebody indicates that they have been the victim of an assault in a workplace.

What is the policy?
What is the policy?

Dr Bruniges: I'm sure that we can, on notice, get you a copy of our policy.

Answer — The Department of Education and Training’s ‘Managing discrimination and harassment in the workplace policy’ is at Attachment A.

Managing discrimination and harassment in the workplace policy Contents 1.

2.

3.

4.
Purpose...........................................................................................................................................3 Date of effect..................................................................................................................................3 Principle ..........................................................................................................................................3 Legislation.......................................................................................................................................4 5.
What is harassment?

......................................................................................................................5 6.

Roles and Responsibilities ..............................................................................................................7 7.

Guidance for dealing with harassment...........................................................................................8 8.

9.
9.

Related documents.......................................................................................................................10 Document particulars ...................................................................................................................11 1.

Purpose 1.1.
The purpose of this policy is to:     outline the Department of Education and Training’s (the department) commitment to providing a safe, flexible and respectful environment which is free from all forms of discrimination and harassment, as well as bullying provide information and practical assistance to employees who believe they have suffered discrimination or harassment, employees who are alleged to have engaged in this behaviour and managers who are required to address such issues maintain an awareness amongst managers and employees of their responsibilities in dealing with discrimination or harassment provide effective procedures for dealing with harassment complaints in a sensitive, fair, timely and confidential manner 1.2.
This policy should be read in conjunction with the Department of Education and Training Enterprise Agreement 2016 – 2019.

2.

Date of effect 2.1.

This policy is effective from 1 July 2013.

3.

Principle 3.1.

The department is committed to fostering and maintaining a positive workplace culture where people treat each other with respect and courtesy, and where discrimination and harassment, as well as bullying, are not tolerated.
A positive workplace environment contributes to higher levels of productivity and enhances morale.

3.2.

The department, its managers and employees have a legal obligation to prevent and respond to workplace discrimination and harassment.

The department expects all employees to take reasonable steps to prevent and eliminate such behaviour, and it will not be tolerated.

3.3.

The department will respond to any complaint received from an employee.
Where appropriate, the department will seek to address allegations locally.

However, there may be cases where it is appropriate to address allegations through a formal process.

3.4.

The department will not tolerate retaliatory behaviour towards individuals who are involved in a complaint process, whether informal or formal.

Under certain legislation, retaliatory behaviour is considered a criminal offence.
Wherever practicable, employees involved in such a process can seek and access appropriate support, for example a support person or union delegate.

3.5.

The department will initiate action in relation to discrimination and harassment in order to fulfil its employer obligations.

3.6.

The identity of employees who report offending behaviour or provide written statements will be kept as confidential as the process and the law allows.

3.7.
3.7.

Employees have the option of having a representative of their choice (which may be a union representative) assist or represent them.

4.

Legislation 4.1.

The legislative framework applicable to the APS places legal obligations on the department and its employees in relation to harassment and bullying.
The relevant pieces of legislation include the Public Service Act 1999 (PS Act); the various pieces of Commonwealth and State anti-discrimination legislation; the Work Health and Safety Act 2011 (WHS Act) and the Fair Work Act 2009.

4.2.
4.2.

The PS Act requires all APS employees to comply with the APS Code of Conduct, which provides that an APS employee, when acting in connection with their APS employment, must:    treat everyone with respect and courtesy, and without harassment behave in a way that upholds the APS Values, APS Employment Principles and the integrity and good reputation of the APS; and comply with all applicable Australian laws.

4.3.
4.3.

Employees should consider that these behavioural requirements may extend to conduct outside of the workplace where there is a relationship to the person’s employment.

4.4.

Discrimination or harassment, as well as bullying, may also breach Commonwealth or State anti-discrimination legislation including the Sex Discrimination Act 1984, Age Discrimination Act 2004, Disability Discrimination Act 1992, Racial Discrimination Act 1975 and Australian Human Rights Commission Act 1986.
Unfair treatment based upon a real or perceived attribute or difference including, but not limited to race, sexuality, gender, gender identity, culture, marital status, disability, religion, pregnancy or age may contravene one or more of these pieces of legislation.

4.5.

Under section 19 of the WHS Act, employers have a duty not to create a risk to the health or safety of other persons (whether employees or not).

Inappropriate behaviour towards a colleague is considered as creating a risk.

4.6.
4.6.

The department, its contractors and agents are bound by the provisions of the Privacy Act 1988 (Privacy Act), which prevents personal information from being disclosed without appropriate consent, unless the disclosure is required or authorised by law.

Section 14 of the Privacy Act contains the Information Privacy Principles which prescribe the rules for handling personal information.

4.7.
4.7.

Any use or disclosure of personal information by the department, its contractors and agents will be in accordance with the Privacy Act.

5.

Discrimination 5.1.

Discrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by the law, such as sex, sexuality, age, race or disability.

5.2.
5.2.

It can be direct, where a person or group is treated less favourably than another person or group in a similar situation because of a personal characteristic protected by law.

5.3.

It can also be indirect, where an unreasonable requirement, condition or practice is imposed that has, or is likely to have, the effect of disadvantaging people with a personal characteristic protected by law.

5.4.
5.4.

Protected personal characteristics include: disability, disease, injury, parental or carer status, race, descent, national origin, ethnic background, age, sex, gender identity, industrial activity, religion, pregnancy, sexual orientation, marital status, political opinion, social origin, and/or medical record.

5.5.
5.5.

It is against the law to treat someone unfavourably because they have an association with someone with one of these characteristics, or if you assume they have one of these personal characteristics.

6.

Harassment 6.1.

Workplace harassment is behaviour that is unwelcome and unsolicited, and which a reasonable person would consider to be offensive, belittling or threatening.

6.2.
6.2.

Workplace harassment can be:      intentional: where actions were intended to humiliate, offend, intimidate or distress, whether or not the behaviour did in fact have that effect unintentional: where actions which although not intended to humiliate, offend intimidate or distress, did cause and should reasonably have been expected to cause that effect repeated or unrepeated directed at an individual or group because of some real or perceived attribute or difference reciprocated or unreciprocated.
6.3.

Workplace harassment may include but is not limited to:  Overt behaviours such as physical contact, intimidating or aggressive behaviours, verbal comments, propositions, pranks or other behaviour which creates a hostile      working environment.
This includes information forwarded as emails and text messages Sexual harassment, including unwelcome sexual behaviour which could be expected to make a person feel offended, humiliated or intimidated Bullying which is repeated workplace behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to an individual or group of individuals.

It can be inflicted by an individual or group.


Ostracism such as physical or social isolation; exclusion from work-related activities; not acknowledging or responding to an individual’s presence or comments; leaving the room when a person enters.
Undermining which involves, but is not limited to, persistent baseless criticism; unwarranted removal of responsibility; spreading gossip and rumours; belittling or derogatory remarks or actions (including gestures and facial expressions) that diminish a person’s dignity.
Sabotage which involves giving meaningless tasks, confusing and/or contradictory instructions; inappropriately and frequently changing work targets; setting unrealistic deadlines; unnecessary disruptions; deliberately withholding important information; deliberately failing to complete tasks or missing deadlines.

6.4.
6.4.

Workplace harassment or bullying can occur in any setting where there is a connection with work, including during work-organised events, outside work hours and while off-site, for example at external meetings, on regional/interstate visits or on overseas postings.

6.5.

Whether or not behaviour is inappropriate, in the sense that a reasonable person would consider it to be offensive, belittling or threatening, will depend on the circumstances.
A good definition of reasonable standards of behaviour comes from the Sex Discrimination Act 1984.

This Act requires that a ‘reasonable person’ must have anticipated that the person who was harassed would be offended, humiliated or intimidated.

It is important for everyone to recognise that we are all different, we each have individual tolerances, and we all react to situations in different ways.

As the department is an APS Agency, our point of reference is the APS Code of Conduct.

6.6.
6.6.

Inappropriate behaviour that has been tolerated to avoid confrontation or has been an accepted feature of the work environment in the past could still be considered harassment.

What is not harassment?

6.7.
The following is not considered to be workplace harassment:   behaviour that is invited or that is genuinely accepted by all the people involved carrying out legitimate or reasonable management decisions or actions, undertaken in a reasonable way    expressing differences of opinion in a constructive and courteous manner making a complaint about a manager’s or other employee’s conduct, if the complaint is made in a proper and reasonable way giving appropriate feedback to or counselling a staff member on his or her work performance or work related behaviour.
This is considered reasonable management action provided that the feedback or counselling is done in a manner that would be considered reasonable.

People, Culture and Capability Branch can provide assistance on how to give feedback in an appropriate manner.

Further information about giving feedback can be found on the Performance page on the intranet.

7.

Roles and Responsibilities 7.1.

The department has a responsibility to take all reasonable steps to prevent workplace harassment.
This includes developing and implementing systems to prevent and address workplace harassment and bullying.

7.2.

All employees (managers, employees, Employee Support Officers) are responsible for ensuring that they only disclose information about complaints to those with a legitimate role in resolving the complaint.

Managers 7.3.
Managers 7.3.

Agency Heads and the Senior Executive Service employees have a specific obligation under the PS Act to promote the APS Values and APS Employment Principles and uphold the Code of Conduct (s.12 and 35(3) of the PS Act).

The department’s senior managers have a responsibility to advocate and explain the standards of behaviour expected of all employees.

7.4.
7.4.

Managers and supervisors have responsibility for detecting and dealing with behaviour which constitutes harassment or has the potential to develop into harassment.

It is the direct responsibility of managers and supervisors to address all complaints.

Managers can and should intervene even in the absence of a complaint.

In some instances, the seriousness of an issue may require the department to take action even where a complainant does not wish to pursue the matter formally.

7.5.
Some practical steps which managers should take to mitigate the occurrence of workplace harassment and bullying include:    ensuring that their own conduct is consistent with the APS Values and Code of Conduct setting and clarifying expectations of appropriate workplace behaviours through the ongoing performance process addressing all complaints promptly (including acknowledging receipt of harassment complaint and advising on next steps)    advising employees that they can approach an Employee Support Officer (ESO), if they require information about workplace harassment or support if they are experiencing it advising employees that they can seek free, confidential, professional assistance from the Employee Assistance Program (EAP), if they are being harassed or bullied in the workplace consulting with People, Culture and Capability Branch for advice on possible courses of action.
Employees 7.6.

Responsibility for both preventing and eliminating harassment rests with all employees.

All employees are responsible for upholding the APS Values, Employment Principles and APS Code of Conduct and ensuring that their behaviour is consistent with these standards.

Employees should report perceived harassment early and work constructively to resolve the issues in a manner appropriate to the circumstances.

7.7.
7.7.

Employees who observe perceived harassment are encouraged to report this to a manager but should be mindful of the limitations of the information available to them.

7.8.

The identity of employees who report offending behaviour or provide written statements will be kept as confidential as the process and the law allows.

The department has procedures for public interest disclosure protection in place to protect reporting employees from victimisation and discrimination.

Employee Support Officers 7.9.


Employee Support Officers (ESOs) are trained to provide support and advice to employees when workplace issues arise, including harassment and bullying.

ESOs do not act as an advocate, or investigate, mediate or resolve complaints.

The ESO may provide advice and support to any party in a complaint regarding the process, options for resolving the concerns and support mechanisms.
ESOs are responsible for providing quarterly reports to People, Culture and Capability Branch on types and numbers of contacts received.

Further information on the role of ESOs is contained in the department’s Employee Support Officer Guide.

8.

Guidance for dealing with harassment 8.1.

Instances of inappropriate behaviour which may constitute workplace harassment, discrimination or bullying should be addressed early.
Local measures are preferred in the first instance for handling complaints and this should occur as quickly as possible.

However, employees are not required to exhaust local processes before formal action commences.

There may be some instances where local processes would not be appropriate and a formal process may commence without delay.

8.2.
8.2.

All matters, whether dealt with formally or locally, must be handled in line with the principles of procedural fairness and treated as confidentially as the process allows.

Local Processes 8.3.
Local measures are the preferred way to resolve all but the more serious cases of harassment because:  they focus on future work relationships by clarifying what is regarded as acceptable behaviour  managers and supervisors can take positive steps to establish working arrangements to eliminate harassment   they allow the individuals concerned to take positive action themselves to correct or alter their behaviour they emphasise resolution rather than factual proof or substantiation of a complaint and allegations will likely remain untested.
8.4.

Employees who have experienced inappropriate and unwelcome behaviour should, if possible, approach the person concerned about the offending behaviour.

Asking the person to stop the behaviour can be successful as they may not be aware their behaviour is considered offensive.

This is an attempt for the parties involved to discuss the matter and achieve an outcome that is acceptable to both parties.

8.5.
8.5.

If the behaviour does not cease or an employee does not feel comfortable approaching the person directly, the matter should be reported to their supervisor.

If the problem includes their immediate supervisor, then report the matter to the manager one removed.

8.6.

After receiving a complaint, managers may take a variety of actions.

These could range from a single discussion with one or more of the parties involved, to more structured proceedings.
To help resolve the matter, supervisors may seek assistance from the department’s ESO Network, People, Culture and Capability Branch, or from a trained mediator.

8.7.

Early reporting and prompt action by supervisors may help to ensure situations are defused.

For more serious incidents, or where local actions have not been successful, a more formal process may be required.

Managers should contact People, Culture and Capability Branch to seek advice on the appropriate process.

8.8.
8.8.

If employees believe one of their colleagues is the subject of inappropriate behaviour, they should raise this the employee or a manager.

Managers have an obligation to take appropriate action in response to complaints of inappropriate behaviour or where they observe behaviour that may be perceived as discrimination, harassment and/or bullying.

Formal Processes 8.9.

Where local processes have not been successful or the alleged harassment is serious, formal methods of resolution may be appropriate.
An employee may make a formal complaint in writing or by filling out the Harassment Complaint Form.

Complainants are required to articulate the nature of their complaint, the outcome sought and steps already taken to resolve the issue.

8.10.

Where a formal harassment complaint is received, the People, Culture and Capability Branch will arrange for preliminary enquiries to be made.

If deemed necessary, this may involve a structured investigation.
An investigation of this nature may inform further action, such as a process in accordance with the department’s Procedures for Determining Breaches of the Code of Conduct.

8.11.

Frivolous or vexatious complaints will not be tolerated and may result in disciplinary action.

8.12.

Some incidents of workplace harassment may amount to a criminal offence.

These could include harassment which involves physical or indecent assault, sending offensive emails or stalking.
The People, Culture and Capability Branch may refer these cases to the Fraud, Analytics and Investigations Branch to determine the most appropriate course of action.

8.13.

If a breach of the APS Code of Conduct is found to have occurred, a sanction may then be imposed.

A finding that harassment has occurred will not always result in a sanction being imposed.

Guidance for employees accused of harassment 8.14.


An employee accused of harassment in the workplace can find this distressing and confronting, particularly if the alleged harassment was unintentional.

An allegation of harassment is only an allegation until it is proven.

It is important to note that the preference is to resolve harassment complaints locally where appropriate.

8.15.
8.15.

Where an allegation of harassment is made against an employee, the employee:  may be informed about the nature of the allegations or concerns made about them  will be afforded appropriate confidentiality 8.16.
There are various sources of support available to employees including:   counselling services through the EAP a support person of their choice to accompany them to any interviews (which may be a union representative)  advice from an ESO or case manager from People, Culture and Capability Branch 8.17.

If a complaint proceeds to formal investigation, the principles of procedural fairness will apply.

This means that employees will be provided with the opportunity to respond to allegations.

9.
9.

Related documents 9.1.

This policy should be read in conjunction with the following related documents:   Employee Support Officer Guide Harassment Complaint Form  Procedures for Determining Breaches of the Code of Conduct  Misconduct Guidelines   Performance Policy Procedures for dealing with Public Interest Disclosures 10.
Document particulars Policy Owner Document Status Point of Contact Approver Approval Authority Date of Approval People, Culture and Capability Branch Final Branch Manager, People, Culture and Capability People, Parliamentary and Communication Group Nikki Curtin A/g Branch Manager, People, Culture and Capability Department of Education and Training 2 February 2018 With the exception of the Commonwealth Coat of Arms, the Department’s logo, any material protected by a trade mark and where otherwise noted all material presented in this document is provided under a Creative Commons Attribution 3.0 Australia (http://creativecommons.org/licenses/by/3.0/au/) licence.
The details of the relevant licence conditions are available on the Creative Commons website (accessible using the links provided) as is the full legal code for the CC BY 3.0 AU licence (http://creativecommons.org/licenses/by/3.0/au/legalcode).

The document must be attributed as the ‘Managing Workplace Harassment Policy’.