1 00:00:04,019 --> 00:00:06,510 Sean Aylmer: Welcome to the Fear and Greed Business Interview. I'm Sean 2 00:00:06,510 --> 00:00:10,380 Sean Aylmer: Aylmer. Today's a significant day in the fight against sexual 3 00:00:10,380 --> 00:00:14,579 Sean Aylmer: harassment and discrimination in the workplace. From December 12, today, 4 00:00:14,580 --> 00:00:18,239 Sean Aylmer: the Australian Human Rights Commission has new powers to investigate 5 00:00:18,239 --> 00:00:22,500 Sean Aylmer: sexual harassment and unlawful conduct under the Sex Discrimination Act. 6 00:00:22,739 --> 00:00:25,770 Sean Aylmer: It's a major change and many businesses may find themselves 7 00:00:25,770 --> 00:00:30,540 Sean Aylmer: unprepared. Prabha Nandagopal is a lawyer who worked as senior legal 8 00:00:30,540 --> 00:00:34,439 Sean Aylmer: advisor on the Human Rights Commission's Respect at Work Inquiry. 9 00:00:34,680 --> 00:00:38,310 Sean Aylmer: She has since founded Elevate Consulting Partners, advising businesses on 10 00:00:38,310 --> 00:00:40,500 Sean Aylmer: this very topic. Prabha, welcome to Fear and Greed. 11 00:00:40,890 --> 00:00:42,810 Prabha Nandagopal: Hi, Sean. It's terrific to be here. 12 00:00:43,380 --> 00:00:45,570 Sean Aylmer: Firstly, can you give me an idea of just how 13 00:00:45,570 --> 00:00:48,990 Sean Aylmer: big a problem sexual harassment is at work? I mean, 14 00:00:48,990 --> 00:00:50,220 Sean Aylmer: the data is quite shocking. 15 00:00:50,700 --> 00:00:55,110 Prabha Nandagopal: It really is, Sean. So sexual harassment is pervasive in Australian 16 00:00:55,110 --> 00:00:59,880 Prabha Nandagopal: workplaces, and no organization or industry is immune. Every five 17 00:00:59,880 --> 00:01:03,330 Prabha Nandagopal: years, the Australian Human Rights Commission conducts a survey into 18 00:01:03,330 --> 00:01:06,930 Prabha Nandagopal: sexual harassment, and the last one was released in December 19 00:01:06,990 --> 00:01:11,699 Prabha Nandagopal: 2022, and it found that 41% of women and 26% 20 00:01:11,699 --> 00:01:15,240 Prabha Nandagopal: of men experience sexual harassment in the workplace. And for 21 00:01:15,240 --> 00:01:20,730 Prabha Nandagopal: some groups that rate is even higher, for example, 46% 22 00:01:21,059 --> 00:01:25,440 Prabha Nandagopal: of people who identify as LGBTQI+, 48% of people with 23 00:01:25,440 --> 00:01:28,589 Prabha Nandagopal: a disability and 56% of Aboriginal and Torres Strait Islander 24 00:01:28,590 --> 00:01:30,900 Prabha Nandagopal: people experience sexual harassment in the workplace. 25 00:01:31,890 --> 00:01:37,050 Sean Aylmer: Wow. The numbers are astounding. What is sexual harassment? I 26 00:01:37,050 --> 00:01:39,420 Sean Aylmer: mean, maybe we need to take it back a step 27 00:01:39,420 --> 00:01:42,270 Sean Aylmer: so that people understand what it is, because if there's 28 00:01:42,270 --> 00:01:44,879 Sean Aylmer: that much of it going on, it can't all be... 29 00:01:45,089 --> 00:01:49,350 Sean Aylmer: well, maybe it is all for poor reasoning, but there 30 00:01:49,350 --> 00:01:50,880 Sean Aylmer: must be ignorance out there as well. 31 00:01:51,930 --> 00:01:55,350 Prabha Nandagopal: Yeah, there really is. What the survey found was that 32 00:01:55,350 --> 00:01:58,410 Prabha Nandagopal: 28% of people, who originally said that they had not 33 00:01:58,410 --> 00:02:02,370 Prabha Nandagopal: experienced sexual harassment based on the legal definition, went on 34 00:02:02,370 --> 00:02:06,029 Prabha Nandagopal: to report experiencing one of the sexual harassment behaviors. So 35 00:02:06,029 --> 00:02:10,050 Prabha Nandagopal: in a nutshell, sexual harassment is sexual conduct or a 36 00:02:10,050 --> 00:02:14,759 Prabha Nandagopal: sexual advance that is unwelcome, that a reasonable person would 37 00:02:14,760 --> 00:02:19,050 Prabha Nandagopal: anticipate the possibility, would intimidate, offend, or humiliate. 38 00:02:19,650 --> 00:02:22,050 Sean Aylmer: Okay. What sectors are worst for it? 39 00:02:22,889 --> 00:02:26,040 Prabha Nandagopal: Yeah, look. At the moment, we found in the last 40 00:02:26,310 --> 00:02:32,250 Prabha Nandagopal: survey, retail is a sector that's really problematic. So 40% 41 00:02:32,250 --> 00:02:36,870 Prabha Nandagopal: of people working in the retail industry reported experiencing sexual harassment. 42 00:02:37,380 --> 00:02:39,870 Sean Aylmer: So take me through the new legislation. It's based around 43 00:02:39,870 --> 00:02:43,889 Sean Aylmer: a company's positive duty to eliminate sexual harassment. What does 44 00:02:43,889 --> 00:02:45,119 Sean Aylmer: positive duty mean? 45 00:02:45,570 --> 00:02:48,960 Prabha Nandagopal: So basically, businesses now have a legal obligation to take 46 00:02:48,960 --> 00:02:53,309 Prabha Nandagopal: proactive measures to eliminate sexual harassment and sex discrimination. And 47 00:02:53,309 --> 00:02:56,608 Prabha Nandagopal: this is a huge shift for employers from the previous complaint- 48 00:02:56,639 --> 00:02:59,849 Prabha Nandagopal: based model, which is reactive, and it relied on individuals 49 00:02:59,850 --> 00:03:03,270 Prabha Nandagopal: having to bear the burden of making complaints. This has 50 00:03:03,270 --> 00:03:06,298 Prabha Nandagopal: now shifted to a proactive model in which employers must 51 00:03:06,300 --> 00:03:10,380 Prabha Nandagopal: take measures to prevent harmful behavior. And the key point 52 00:03:10,380 --> 00:03:14,008 Prabha Nandagopal: businesses need to understand is they can be held liable 53 00:03:14,008 --> 00:03:16,979 Prabha Nandagopal: for failing to take those measures even if no one 54 00:03:16,980 --> 00:03:17,879 Prabha Nandagopal: has made a complaint. 55 00:03:18,449 --> 00:03:26,999 Sean Aylmer: Stay with me Prabha, we'll be back in a minute. I'm speaking to Prabha 56 00:03:27,000 --> 00:03:32,519 Sean Aylmer: Nandagopal, founder of Elevate Consulting Partners. Okay. So let's take 57 00:03:32,520 --> 00:03:34,439 Sean Aylmer: a retailer and let's say it's a cafe and they've 58 00:03:34,440 --> 00:03:38,640 Sean Aylmer: got 10 staff. And is it about making sure that 59 00:03:38,640 --> 00:03:44,759 Sean Aylmer: the cafe owner educates, trains appropriate behavior in the workplace? 60 00:03:45,030 --> 00:03:48,360 Sean Aylmer: I'm thinking of it in pragmatic terms. What does a 61 00:03:48,360 --> 00:03:51,030 Sean Aylmer: small owner of a shop need to do, for example? 62 00:03:51,780 --> 00:03:53,999 Prabha Nandagopal: Yes. So if we take a step back, the Australian 63 00:03:54,000 --> 00:03:57,150 Prabha Nandagopal: Human Rights Commission, who have been conferred the powers to 64 00:03:57,150 --> 00:04:00,480 Prabha Nandagopal: monitor and enforce compliance, have put out a suite of 65 00:04:00,480 --> 00:04:04,199 Prabha Nandagopal: guidance material that's based on the positive duty compliance framework. 66 00:04:04,230 --> 00:04:09,120 Prabha Nandagopal: They set out seven standards, which they expect businesses to 67 00:04:09,179 --> 00:04:12,119 Prabha Nandagopal: meet in order to satisfy the duty. So the seven 68 00:04:12,119 --> 00:04:16,920 Prabha Nandagopal: standards are in the areas of leadership, knowledge, culture, risk 69 00:04:16,920 --> 00:04:21,690 Prabha Nandagopal: management, support, reporting and response, and monitoring and transparency and 70 00:04:21,690 --> 00:04:26,520 Prabha Nandagopal: evaluation. Now, for a small business owner, I think firstly, 71 00:04:26,520 --> 00:04:30,119 Prabha Nandagopal: you want to understand what's happening in your workplace, speak 72 00:04:30,119 --> 00:04:32,969 Prabha Nandagopal: to your workers. Where is the sexual harassment and sex 73 00:04:32,970 --> 00:04:37,050 Prabha Nandagopal: discrimination occurring? What are the hotspots? What are your risk 74 00:04:37,050 --> 00:04:40,560 Prabha Nandagopal: factors? Now, we know that under- reporting of sexual harassment 75 00:04:40,770 --> 00:04:44,130 Prabha Nandagopal: is rife, so only 18% of people who experience sexual 76 00:04:44,130 --> 00:04:47,699 Prabha Nandagopal: harassment report it. So it is not a reliable indicator 77 00:04:47,699 --> 00:04:50,969 Prabha Nandagopal: to rely on formal complaints that have been made. Then 78 00:04:50,970 --> 00:04:53,610 Prabha Nandagopal: you want to ensure that you have a very clear, 79 00:04:54,089 --> 00:04:58,859 Prabha Nandagopal: simple policy that outlines the behaviors that are unlawful, expected 80 00:04:58,860 --> 00:05:02,789 Prabha Nandagopal: stance of behavior, as well as letting your staff know 81 00:05:03,299 --> 00:05:05,818 Prabha Nandagopal: how they can make a report if they experience sexual 82 00:05:05,820 --> 00:05:09,960 Prabha Nandagopal: harassment or sex discrimination. And then, another key thing businesses 83 00:05:09,960 --> 00:05:13,170 Prabha Nandagopal: of all sizes need to do, is to ensure that 84 00:05:13,170 --> 00:05:17,969 Prabha Nandagopal: their workforce is educated on sexual harassment and sex discrimination 85 00:05:17,969 --> 00:05:21,599 Prabha Nandagopal: behaviors and what their rights and responsibilities in the workplace are. 86 00:05:22,440 --> 00:05:25,349 Sean Aylmer: Okay. So I mean, there's a lot in that, and I can kind 87 00:05:25,350 --> 00:05:28,200 Sean Aylmer: of get my head around a small business person doing 88 00:05:28,200 --> 00:05:31,260 Sean Aylmer: the right thing. What about a really big retailer who 89 00:05:31,320 --> 00:05:35,099 Sean Aylmer: literally has tens of thousands of employees, they're going to 90 00:05:35,099 --> 00:05:37,740 Sean Aylmer: have to make sure they've got some pretty good governance 91 00:05:37,740 --> 00:05:40,708 Sean Aylmer: around this, that people are trained and uneducated? 92 00:05:41,400 --> 00:05:46,350 Prabha Nandagopal: Yeah, absolutely. And actually just last week, the AICD, jointly 93 00:05:46,350 --> 00:05:50,070 Prabha Nandagopal: with ACSI, released research on how prepared boards are for 94 00:05:50,070 --> 00:05:53,849 Prabha Nandagopal: their obligations and to provide support for directors in navigating 95 00:05:53,849 --> 00:05:58,020 Prabha Nandagopal: this new landscape. And the research found that, while 85% 96 00:05:58,049 --> 00:06:01,710 Prabha Nandagopal: of ASX 300 directors believe that the prevention of workplace sexual 97 00:06:01,710 --> 00:06:06,150 Prabha Nandagopal: harassment was a high priority issue for boards, most of 98 00:06:06,150 --> 00:06:09,630 Prabha Nandagopal: the directors surveyed, including 80% of women directors, don't believe 99 00:06:09,630 --> 00:06:12,389 Prabha Nandagopal: that their boards are fully equipped to meet the positive 100 00:06:12,389 --> 00:06:16,739 Prabha Nandagopal: duty obligations. So for these large organizations, I think the 101 00:06:16,740 --> 00:06:20,130 Prabha Nandagopal: first thing is for them to ensure that their leaders 102 00:06:20,130 --> 00:06:24,660 Prabha Nandagopal: understand that they are ultimately responsible and accountable for eliminating 103 00:06:24,660 --> 00:06:27,659 Prabha Nandagopal: sexual harassment and sex discrimination. This is not an issue 104 00:06:27,660 --> 00:06:30,870 Prabha Nandagopal: that can be delegated to HR or people and culture. 105 00:06:31,139 --> 00:06:34,140 Prabha Nandagopal: It must be treated like any other business imperative and 106 00:06:34,170 --> 00:06:35,580 Prabha Nandagopal: backed by meaningful action. 107 00:06:35,969 --> 00:06:38,550 Sean Aylmer: Okay. So what happens if companies don't comply? 108 00:06:39,089 --> 00:06:42,540 Prabha Nandagopal: So the Australian Human Rights Commission does have monitoring and 109 00:06:42,540 --> 00:06:46,559 Prabha Nandagopal: enforcement powers. So if the commission reasonably suspects that a 110 00:06:46,559 --> 00:06:49,380 Prabha Nandagopal: business is not complying with the positive duty, they can 111 00:06:49,380 --> 00:06:53,519 Prabha Nandagopal: commence an inquiry. They can issue compliance notices, and then 112 00:06:53,520 --> 00:06:57,900 Prabha Nandagopal: if those compliance notices aren't met, then they can go to the federal court 113 00:06:57,900 --> 00:06:59,040 Prabha Nandagopal: to seek enforcement. 114 00:06:59,460 --> 00:07:01,979 Sean Aylmer: Okay. So it's a very, very serious issue this, and 115 00:07:02,040 --> 00:07:05,339 Sean Aylmer: from today, literally, all businesses need to be at least 116 00:07:05,670 --> 00:07:09,630 Sean Aylmer: thinking about it. It sounds like Australian companies and organizations 117 00:07:09,630 --> 00:07:12,779 Sean Aylmer: really aren't ready for the change. And how effective is 118 00:07:12,779 --> 00:07:14,640 Sean Aylmer: this going to be if companies aren't ready? 119 00:07:15,120 --> 00:07:18,480 Prabha Nandagopal: Well, companies have been given 12 months to get their 120 00:07:18,480 --> 00:07:22,139 Prabha Nandagopal: house in order. The legislation was passed in December last 121 00:07:22,139 --> 00:07:26,100 Prabha Nandagopal: year. I think this enforcement date, today, 12th of December, 122 00:07:26,549 --> 00:07:30,120 Prabha Nandagopal: is a good opportunity for organizations and businesses to be 123 00:07:30,150 --> 00:07:33,510 Prabha Nandagopal: reminded that now the commission can start enforcing and you 124 00:07:33,510 --> 00:07:36,990 Prabha Nandagopal: really must start putting measures in place to eliminate sexual 125 00:07:36,990 --> 00:07:38,220 Prabha Nandagopal: harassment and sex discrimination. 126 00:07:38,520 --> 00:07:42,299 Sean Aylmer: I'm just interested, where is Australia in terms of other countries? 127 00:07:42,300 --> 00:07:44,729 Sean Aylmer: Does this legislation put us in line with other countries? 128 00:07:44,730 --> 00:07:46,409 Sean Aylmer: Are we still lagging? Where are we up to? 129 00:07:46,949 --> 00:07:51,570 Prabha Nandagopal: Yeah. So in 2020, the National Inquiry into Sexual Harassment found 130 00:07:51,570 --> 00:07:56,160 Prabha Nandagopal: that Australia was lagging behind other countries in terms of 131 00:07:56,309 --> 00:07:59,670 Prabha Nandagopal: prevention and response to sexual harassment. But since then, over 132 00:07:59,670 --> 00:08:02,940 Prabha Nandagopal: the past three years, there has been significant legal, regulatory 133 00:08:02,940 --> 00:08:06,059 Prabha Nandagopal: and policy changes that have brought us more in line 134 00:08:06,059 --> 00:08:08,730 Prabha Nandagopal: with leading practice around the world. I think, particularly, with 135 00:08:08,730 --> 00:08:12,510 Prabha Nandagopal: this positive duty framework, we are coming out ahead. Just 136 00:08:12,510 --> 00:08:15,300 Prabha Nandagopal: a few weeks ago, the United Kingdom passed their positive 137 00:08:15,300 --> 00:08:18,479 Prabha Nandagopal: duty legislation, and that only comes into force later next 138 00:08:18,480 --> 00:08:21,030 Prabha Nandagopal: year. So I think there are going to be many 139 00:08:21,030 --> 00:08:24,390 Prabha Nandagopal: eyes internationally on Australia to see how the business community 140 00:08:24,600 --> 00:08:27,090 Prabha Nandagopal: responds to their new obligations and the impact this will 141 00:08:27,090 --> 00:08:28,200 Prabha Nandagopal: have on prevalence rates. 142 00:08:28,830 --> 00:08:30,990 Sean Aylmer: Prabha, thank you very much for talking to Fear and Greed. 143 00:08:31,530 --> 00:08:33,059 Prabha Nandagopal: No problems at all. Thank you, Sean. 144 00:08:33,328 --> 00:08:38,249 Sean Aylmer: That was Prabha Nandagopal, founder of Elevate Consulting Partners. This is 145 00:08:38,250 --> 00:08:40,708 Sean Aylmer: the Fear and Greed Business Interview. Join us every morning 146 00:08:40,708 --> 00:08:43,199 Sean Aylmer: for the full episode of Fear and Greed, Australia's best 147 00:08:43,200 --> 00:08:45,870 Sean Aylmer: business podcast. I'm Sean Aylmer. Enjoy your day.