Audience

All department employees, contractors, and visitors (defined in this policy as workers). ‘Department' and 'department workplace setting' encompasses all NSW public schools and school staff.

As the department recognises that sexual harassment, can also be perpetrated against workers by people outside of the department (for example, parents and community members), these standards also cover responding to victims of sexual harassment and sexual assault by non-employees in a department workplace setting.

Expectations of behaviour for community members and parents are covered by the School Community Charter.

Expectations of student behaviour and responding to students with problematic or harmful sexual behaviour (including workers being sexually harassed by students) are covered by:

• Student behaviour policy, including the Behaviour code for students and the Suspension and expulsion procedures.
• Children with problematic or harmful sexual behaviours – Guidelines for schools (PDF 2.2 MB).

About the policy

Guiding principles

Strong and consistent leadership – leaders continuously reinforce that sexual harassment is unacceptable, model safe and respectful behaviour and foster a safe reporting culture. All principals and workplace managers have an obligation to provide a safe workplace.

Sexual harassment is a work health and safety issue – all reasonably practicable steps are taken to eliminate or minimise the health and safety risks of sexual harassment in the workplace.

Prevention – sexual harassment is prevented by addressing gender inequality and unequal power relations as the key drivers and identifying and managing key risk factors.

Early intervention – early intervention approaches are used where possible to intervene early to address workplace sexual violence and prevent escalation.

Respecting victim-survivors – the safety, wellbeing and privacy of victim-survivors is prioritised by providing a confidential, trauma-informed approach that supports, listens to and validates the experience of victim-survivors.

All parties are treated fairly and supported – action to address sexual harassment, including sexual assault, prioritises the rights, needs and wishes of the complainant and should ensure adequate support is provided to the respondent while ensuring procedural fairness to all parties.

Responsive to diverse needs – understanding, respecting, and embracing the many and intersecting aspects of a person’s identity in preventing and responding to sexual misconduct.

Reasonable person test – what is acceptable standard of behaviour can differ between teams, so the test of what a ‘reasonable person’ would think of the behaviour must be applied.

Standards

1. What is sexual harassment?

Sexual harassment is any conduct (physical, verbal, written or digitally communicated) that:

• is unwelcome
• is of a sexual nature
• a reasonable person (aware of all the circumstances) would anticipate could possibly make the person subjected to the conduct feel offended, humiliated or intimidated.

Being aware of ‘circumstances’ includes considering the contextual setting, the harassed person’s characteristics (such as age, gender identity, sexual orientation, intersex status, relationship status, race, colour or ethnicity), the relationship between the 2 people, any disabilities and other relevant or intersecting factors.

Sexual harassment may be committed by a department employee, a contractor, volunteer, visitor, customer, member of the school community or a student.

Sexual harassment is unlawful under the Sex Discrimination Act 1984.

Sexual harassment may also be a form of unlawful sex discrimination, where a person is harassed based on sex, sexual orientation, gender identity, intersex status or relationship status:

• There is no requirement that the unwelcome conduct be repeated; a one-off incident can be sexual harassment. A broader pattern of behaviour can also constitute sexual harassment.
• The intention of the respondent (for example they thought they were making a joke) does not override the feelings of the victim.

2. What is not considered to be sexual harassment?

A sexual or romantic interaction that is entered into freely and is reciprocated between consenting adults is not sexual harassment.

This does not mean that consensual sexual or romantic interactions between workers are always appropriate. Workers may face disciplinary action where their actions adversely affect other workers or their workplace responsibilities.

The Code of Conduct requires employees to disclose actual, potential or reasonably perceived conflicts of interest between an employee’s personal interests and their official duties.

Supporting information

• Understanding different forms of sexual harrassment
• Examples of sexual harassment in the department context contained in the Workplace sexual harassment prevention site
• Sex Discrimination Act 1984

3. When sexual harassment is a criminal offence

Some forms of sexual harassment may also be a sexual offence under criminal law, for example:

• sexual assault or aggravated sexual assault
• unwanted sexual touching or threatening to touch a person in a sexual way without their consent, for example unwanted kissing or touching of a person’s breast, bottom or genitals
• indecent exposure
• stalking
• obscene communications, including recording or distributing an intimate image or video of another person without their consent.

Threatening to engage in these behaviours may also be a sexual offence.

Sexual offences must be reported to the NSW Police.

4. Preventing sexual harassment

Sexual harassment is a hazard and risk to workers’ physical and psychological health and wellbeing. The department is committed to taking a proactive and holistic approach to preventing sexual harassment in the workplace. Prevention is about stopping behaviour before it happens by targeting the ‘root causes’ or the drivers and risk factors that underpin sexual harassment, as well as targeting behaviours themselves.

The department must take reasonable steps to prevent sexual harassment in department workplaces, including:

• promoting and ensuring compliance with this policy
• regularly conducting a risk assessment to identify, assess, eliminate and mitigate risk factors for sexual harassment across the department
• ensuring all workers are trained to appropriately identify sexual harassment, call out behaviour as active bystanders, and are aware of the reporting and response procedures
• committing to transparency by collecting and releasing (as appropriate, and with de-identified data) the number of reports of sexual harassment in the department and the actions taken in response
• promoting a diverse, inclusive and respectful workforce under the Code of Conduct, understanding that addressing gender inequality and intersectional discrimination is fundamental to eliminating workplace sexual harassment.

Principals and workplace managers must:

• model appropriate and respectful workplace behaviour
• take reasonable steps to prevent sexual harassment from occurring in the workplace, including
  • consistently reinforcing that sexual harassment and other forms of sexual violence are unacceptable
  • challenging inappropriate behaviour when observed
  • encouraging an environment where workers feel safe to report sexual harassment
  • ensuring all direct reports are aware of their responsibilities under these standards to contribute to a culture where sexual harassment is unacceptable
  • promoting all training, information, resources and support available to direct reports
• understand they can be held vicariously liable for the conduct of the workers they are responsible for, if they do not take reasonable steps to prevent sexual harassment from occurring in the workplace.

Refer to Workplace sexual harassment prevention and response for further information, guidance and resources.

4.1 Reporting sexual harassment

Incidents of sexual harassment can be reported informally, formally, anonymously and confidentially.

People who have experienced or witnessed sexual harassment can:

• seek support on making a disclosure
• report to their principal, workplace manager, through the PES Reporter Guide or to Professional and Ethical Standards directly. If the respondent is the worker’s manager, they should report to their manager’s manager (for example, director educational leadership or director)
• report to an external authority
  • Anti-Discrimination NSW
  • Australian Human Rights Commission
  • Safe Work NSW
  • NSW Police
  • Fair Work Ombudsman
  • NSW Independent Commission Against Corruption (if corrupt conduct is suspected or may be involved).

The department strongly encourages individuals who have been sexually harassed or have witnessed sexual harassment to report the behaviour to their principal or workplace manager, even when the behaviour was raised directly with the respondent(s) at the time. All reports of sexual harassment are taken seriously.

Making a report about sexual harassment does not always trigger an investigation by Professional and Ethical Standards, though that may be appropriate in some cases. The PES Reporter Guide will be applied to determine the appropriate response to a concern. The department’s response will be proportionate and consider the view of the person making the report. Support, advice and early intervention may resolve the issue.

In cases of sexual assault, workers will be supported to make a report to NSW Police and referred to specialised sexual assault support services.

Refer to: Support for workers experiencing sexual harassment, including sexual assault, for further information on the range of reporting pathways, corresponding processes, guidance and support.

Any reports that are found to be intentionally falsified or vexatious in nature will be actioned accordingly and may amount to misconduct.

5. Responding to reports of sexual harassment

The department is committed to taking a trauma-informed and person-centred approach when responding to reports of sexual harassment, including sexual assault.

The Management of conduct and performance outlines the process and department’s responsibilities when dealing with an allegation.

Principals and workplace managers must:

• prioritise the safety, privacy and wellbeing of the person impacted
• listen to the person impacted in a compassionate, non-judgmental and sensitive manner
• report cases of sexual assault to the NSW Police
• respond to reports made impartially, fairly, timely and reasonably, in line with the Management of conduct and performance
• ensure all participants in the process have clear information about the process and how procedural fairness will be provided
• treat all reports seriously and ensure confidentiality is understood and maintained, in line with the confidentiality requirements in the Management of conduct and performance procedure (PDF 909 KB)
• submit reports through the PES reporter guide, which will provide guidance on steps for appropriately addressing the behaviour through Direct Management Action or formal investigation by Professional and Ethical Standards
• consider the wishes of the person who has experienced sexual harassment where possible when determining how to proceed with a complaint
• manage personal relationships between staff appropriately, including addressing conflict of interest where it arises
• ensure responses to the complaint are provided in a timely manner.

The department must:

• eliminate all forms of discrimination
• eliminate hostile workplace environments
• establish and promote clear reporting pathways for complaints of sexual harassment
• ensure all processes for reporting and responding to sexual harassment, including sexual assault, are designed to minimise harm
• ensure all principals and workplace managers understand where to access training for responding to reports of sexual harassment, including sexual assault, in a trauma-informed manner
• investigate complaints made impartially, fairly, timely and reasonably in accordance with the principles of procedural fairness and the Management of conduct and performance
• ensure there are no acts of victimisation or retributing behaviour towards anyone reporting or impacted by sexual harassment or sexual assault.

In some cases, the person impacted may not want any action taken and is reporting the behaviour so that the department knows. This will be respected where possible, though some situations may require additional reporting or disciplinary action to be taken. For example, in situations where the behaviour constitutes a serious work health and safety risk, where there are mandatory reporting requirements, repeated behaviour from an individual, or a criminal offence.

Where possible, the department will explain its reasons if it does not handle or resolve the complaint in the way requested by the person impacted.

6. Possible outcomes

A principal or workplace manager must:

• take an allegation of sexual harassment, including sexual assault, seriously and fairly
• use the PES reporting guide to determine whether to take Direct Management Action or whether the matter should be further assessed by Professional and Ethical Standards for a disciplinary investigation.

Direct management action taken by a manager must be proportionate and appropriate to address the behaviour, and can include:

• facilitating an apology
• agreeing on protocols to manage the relationship moving forward
• taking refresher training in sexual harassment prevention
• coaching or performance counselling
• providing a direction about future conduct
• or a combinations of the above actions.

Action taken by Professional and Ethical Standards can include remedial or disciplinary action such as warnings, transfers, reprimands, fines, demotions or dismissals.

Principals, workplace managers and Professional and Ethical Standards must consider any further referrals to other agencies that may be required, as sexual assault and some forms of sexual harassment may constitute a criminal offence.

7. Where the respondent is a student

The department recognises that sexual harassment prevention includes addressing unwelcome or unlawful behaviour towards workers, including when the behaviour comes from students.

Under the Sex Discrimination Act 1984, it is unlawful for any person to sexually harass another person while receiving services from another person. Under section 22E of the Anti-Discrimination Act 1977 (NSW):

• It is unlawful for a department employee or worker to sexually harass a student or a person who is seeking to become a student
• It is unlawful for an adult student (16 years old and over) to sexually harass another student, or a department employee or worker.

Schools must teach child protection education in every stage of learning from Kindergarten to Year 10, as part of the NSW Education Standards Authority (NESA) Personal Development, Health and Physical Education (PDHPE) K-10 Syllabus. Senior students in NSW public schools extend their learning about respectful relationships, protective strategies, power, abuse and violence as part of the mandatory 25 hour Life Ready course.

Expectations of student behaviour and responding to students with problematic or harmful sexual behaviour are covered by:

• Student behaviour policy, including the Behaviour code for students and Suspension and expulsion procedures
• Children with problematic or harmful sexual behaviours – Guidelines for schools.

These provide formal protection for workers against sexual harassment from students, and an avenue for workers to make a report and seek a remedy.

In addition to the steps outlined in the above documents, principals must:

• recognise, respond and report problematic and/or harmful sexual behaviour by students to the Child Wellbeing Unit (CWU) or, when required, make a Mandatory Report to the Department of Communities and Justice (DCJ)
• proactively speak directly with students who exhibit sexual harassment behaviour and clearly communicate that sexually harassing behaviour from any source will not be tolerated. It may be necessary to consider issuing a suspension to any student who engages in serious behaviour or behaviours of concern to mitigate immediate and/or significant risk of harm to students or workers. It may also be necessary to contact NSW Police
• ensure workers are encouraged to speak up about conduct that is harassing, including conduct from students.

All reports of sexual harassment perpetrated by students in the workplace will be taken seriously and responded to as soon as practicable by the department.

7.1 Possible outcomes

If allegations of sexual harassment are substantiated, the department will take proportionate and consistent action to hold the responsible person to account for their behaviour. The action could be formal or informal and include:

• a change to working hours or locations
• an apology
• agreement on protocols to manage the relationship moving forward
• coaching or performance counselling
• referral to the NSW Police
• a formal caution, suspension or expulsion.

8. Where the respondent is a parent or community member

The department recognises that sexual harassment prevention includes addressing unwelcome or unlawful behaviour from people outside the department towards workers.

Under the Sex Discrimination Act 1984, it is unlawful for any person to sexually harass another person while receiving services from another person.

Expectations of behaviour for community members and parents are covered in the School Community Charter.

These provide formal protection for workers against sexual harassment from parent and community members, and an avenue for workers to make a complaint and seek a remedy.

Principals and workplace managers must:

· encourage staff to report sexual harassment through the department's Incident Report and Support Hotline on 1800 811 523, where staff will provide advice and support

· proactively speak directly with parent and community members who exhibit sexual harassment behaviour and clearly communicate that sexually harassing behaviour from any source will not be tolerated. It may be necessary to contact NSW Police and, in some cases, ban a parent and community members under the Inclosed Lands Protection Act 1901

· ensure workers are encouraged to speak up about conduct that is harassing, including conduct from students, parent and community members.

All reports of sexual harassment perpetrated by a parent and community members in the workplace will be taken seriously and responded to as soon as practicable by the department.

8.1 Possible outcomes

If allegations of sexual harassment are substantiated, the department will take proportionate and consistent action to hold the responsible person to account for their behaviour. The action could be formal or informal and include:

• an apology
• agreement on protocols to manage the relationship moving forward
• referral to the NSW Police
• barring entry onto school sites and school events.

A person who assaults, stalks, harasses or intimidates a school staff member while the staff member staff is attending a school, although no actual bodily harm is occasioned, is liable to imprisonment for 5 years.

Supporting information

• Code of Conduct

Record-keeping requirements

• Principals and workplace managers must keep confidential records of all correspondence with parties in relation to reports of sexual harassment, including letters, emails, file notes of phone calls and conversations, investigation reports and all evidence collected.

Mandatory tools and templates

• PES Reporter Guide

Supporting tools, resources and related information

Policy contact