Marketing management consultancy firm, Trinity P3, has recently made headlines in advertising circles by announcing they will ask all advertising agencies wanting to work on a pitch being managed by Trinity P3, to give a statutory declaration attesting to their processes regarding workplace bullying, harassment, and assault. Provision of a statutory declaration is not mandatory for an agency to be considered, however, its absence (or presence) will be apparent to the client and may form part of their due diligence in the selection of an agency for the work.
In a LinkedIn Post by Trinity P3, the firm outlined its motivations regarding the new policy:
“Over the past 12 months, all of us have heard the wave of stories where particularly female employees have been targeted, bullied, and in some instances assaulted. It has felt like Australian adland might suddenly have its “me too” moment. But then the strictures of our defamation laws worked to ensure nothing happened and the moment faded.”
“TrinityP3 has a key role in advising our clients on the agencies they choose to work with. We are trusted to provide insights and knowledge in recommending the best fit agencies for their needs. But there is also a requirement that we inform them of the possible risks and challenges that come with that selection process.”
According to the LinkedIn post, Trinity P3’s statutory declaration will ask ad agencies to detail their use of confidentiality deeds and similar instruments such as non-disclosure agreements (NDAs) which may result in victims of harassment being silenced and reduce workplace reporting of issues. The focus on the prevalence of NDAs or confidentiality agreements and the impact of such legal arrangements on reporting of sexual harassment mirrors that of the Victorian Government, which recently announced its intention to propose legislative reforms to limit the use of non-disclosure agreements in sexual harassment cases.
Gretchen Carlson (a former Fox News journalist who filed a claim against the former chairmen and CEO of Fox News on harassment claims) has been a vocal proponent of legislation to ban NDAs silencing victims of workplace harassment and assault and has publicly supported Trinity P3’s initiative.
It is clear that ad agencies that run their workplace like an episode of Mad Men will not only likely face legal issues in the future but will damage their opportunity to win work and attract the best talent.
It is therefore a timely reminder to agencies and indeed businesses in all industries, to ensure they are clear on what is expected from them both legally and socially.
Prevention And Response To Workplace Sexual Harassment
Many sectors and industries will already be familiar with tendering processes requiring disclosure of workplace issues and declarations with respect to workplace policies and procedures, however with a renewed focus on harassment in the workplace all employers should act to:
- review their policies and procedures on bullying and harassment;
- ensure appropriate training is provided to all staff on bully and harassment and the policies and procedures your organisation has in place;
- conduct an independent review of previous reports of bullying and harassing behaviour and consider how responses may be improved;
- consider the implementation of a trauma-informed approach to investigations of bullying and harassment; and
- conduct surveys (including on an anonymous basis) of employees with respect to workplace culture, including instances of harassment and bullying, to get a better understanding if the issue is being under-reported or there are fundamental culture issues requiring immediate attention.
All employers need to recognise that harassment and bullying in the workplace is not just an HR issue, but also a work health and safety issue which can open up the employer (and also its directors or owners) to liability from employees suffering injury in their employment because they have not managed the risks of such behaviour occurring.
Factors That Increase Risks of Sexual Harassment
Identifying and properly managing the risks of workplace harassment is particularly important for employers in industries with high risk factors of sexual harassment. Safe Work Australia has identified that the following factors increase the likelihood and risks of sexual harassment:
- Power imbalances – workplaces where one gender holds most of the management and decision-making positions.
- A workplace culture that tolerates sexual harassment – where less serious forms of harassment are accepted and complaints regarding such behaviour are not taken seriously. This can result in escalation to more serious forms of harassment, aggression, and violence
- Isolation of workers.
- Low workplace diversity (i.e., workplaces dominated by one gender, age group, race, or culture).
A PCBU (a person conducting a business or undertaking), has the responsibility to set the standards of behaviour for their organisation, and to ensure that acceptable behaviour standards are reflected across all levels of your organisation, including managers and supervisors. A workplace policy specifically on sexual harassment, and training on the policy, can help set clear expectations about behaviours at the workplace and during work-related activities and provide important information for workers, supervisors, and managers, including what to do if they:
- witness or experience workplace harassment; or
- receive a complaint from a worker that they have experienced or witnessed workplace harassment.
It is also vital that supervisors and managers who are likely to be dealing with or receiving complaints of sexual harassment know how to respond if they receive a report or complaint, so they know how to:
- address concerns early, and prevent larger issues from arising;
- manage confidentiality issues;
- know when a situation requires immediate escalation to the PCBU or board; and
- respond to a person making a complaint in a suitable way, to ensure that the impact on the worker is not worsened and they are not ‘re-victimised’ while they are making the complaint.
We have compiled a downloadable sexual harassment resource guide for employers. The guide is non-exhaustive and general in nature but provides links to some important information that should assist employers with a better understanding of their obligations. Businesses unsure about their obligations should consider consulting an employment lawyer for legal advice and guidance specific to their circumstances.