Projects approved for Screen Australia production funding from 2 April 2018 need to comply with the Code.
About the Code
After feedback from industry and stakeholders, the Code has been finalised and is set out below. The Code and the obligations around it form part of the funding contract for the production.
Note:
- Producers will need to replace all fields [highlighted in brackets] with the relevant information before supplying the Code to production participants.
- Producers will be required to use the approved text only for both the Code and the workplace poster.
- The Code and poster appearance, branding, formatting etc will be at the producer’s discretion, but the Code minimum document size is A4, and the poster minimum size is A3.
Code of conduct to prevent sexual harassment
[Production company] is committed to ensuring the health and safety of each person who performs work on [project].
We have zero tolerance for any form of sexual harassment in the making of [project].
Under the Sex Discrimination Act 1984 and state legislation it is against the law for a person to sexually harass another person. Some forms of sexual harassment, including sexual assault and indecent exposure, are also crimes and will be reported to the police.
[Production company] has appointed [Name of sexual harassment prevention contact] as the sexual harassment prevention contact for [project]. [Contact] is available to any person involved in the making of the project and is also available to anyone applying or auditioning for a role on the project. [Contact’s] contact details are [details].
You should report any conduct that you believe is sexual harassment, whether it is against you or another person, to [contact] or to your supervisor or to [name of Producer] directly.
You also have the right to seek advice or assistance from others (such as your union or lawyer), or seek assistance from or make a complaint to the Australian Human Rights Commission.
[Production company] assures you that timely, fair and appropriate action will be taken to address any complaint. Victimisation of any person who raises a complaint is unlawful.
It is very important to speak up.
Everyone has a responsibility to promote appropriate standards of behaviour at all times. This includes during work hours while working on the project and out-of-hours while attending work-related functions.
People can be personally liable for engaging in sexual harassment.
Sexual harassment is any unwanted, unwelcome or uninvited behaviour of a sexual nature, which makes a person feel offended, humiliated or intimidated.
This includes staring or leering, unnecessary familiarity, such as deliberately brushing up against you or unwelcome touching, suggestive comments or jokes, insults or taunts of a sexual nature, intrusive questions or statements about your private life, displaying posters, magazines or screen savers of a sexual nature, sending sexually explicit emails or text messages, inappropriate advances on social networking sites, accessing sexually explicit internet sites, requests for sex or repeated unwanted requests to go out on dates.
Some forms of behaviour may also be considered to be an offence under criminal law, such as physical assault, indecent exposure, sexual assault, stalking or obscene communications.
Consensual behaviour between adults which is welcome and reciprocated, such as flirting, is not sexual harassment.
Sexual harassment disproportionately affects women with 1 in 5 experiencing sexual harassment in the workplace at some time. However, 1 in 20 men also report experiencing sexual harassment in the workplace.
What motivated the Code’s creation?
Sexual harassment in the screen industry has been a topic of discussion internationally for some time. The discourse in Australia made it apparent that awareness of what actually constitutes sexual harassment and assault was low. Willingness to report incidents and/or confusion over how to report incidents and to whom, were also topics of discussion.
The Code is designed to set out existing responsibilities in plain language and raise awareness of these responsibilities. The appointment of a Sexual Harassment Prevention Contact for productions makes the path to reporting incidents easier for victims.
Does Screen Australia have the authority to require special workplace policies?
The Code sets a minimum standard based on existing laws and is modelled on guidelines issued by the Human Rights Commission that all employers should follow. The Code does not introduce new legal requirements above existing statutory requirements but does make the requirement to comply with the Sex Discrimination Act a condition of funding.
The designation of a Sexual Harassment Prevention Contact is a new title, however the function of that role would already exist in many production houses as part of human resources. The creation of the role is in response to reports of misconduct not being properly addressed in the workplace, not just in the screen industry but in the broader entertainment sector. It is critical that a suitably qualified and experienced Contact is available to all participants involved in making a title.
What contracts will the Code be included in?
All Screen Australia production agreements i.e. production grant agreements and production investment agreements. Essentially this means all Screen Australia titles approved from 2 April 2018 are subject to the Code.
In practice, what is the Code?
Practically speaking the Code means that producers will need to:
- Make it clear to every participant in a production that there is zero tolerance for sexual harassment.
- Give a copy of the Code to all participants and place abridged versions of the Code in poster form in prominent places in the workplace.
- Designate a Sexual Harassment Prevention Contact to deal with sexual harassment complaints – someone who is available to everyone participating in the production and is suitably qualified and experienced.
- Deal with any complaints in a way that is fair, timely and confidential.
What training is the Sexual Harassment Prevention Contact required to have? Is there a qualification?
To act as the Contact no specific accreditation is required, however producers should provide training and support as is appropriate for the size of their company and the production.
The Human Rights Commission has published very comprehensive guidance material on dealing with sexual harassment, and most HR practitioners will already be experienced in this area. There are also private training organisations who provide contact officer training.
There is still work to be done across the industry in getting people up-skilled in this area and SPA is taking a leading role in this in consultation with Screen Australia.
How long must the role of Sexual Harassment Prevention Contact be active on the production?
The Sexual Harassment Prevention Contact role must exist throughout production and post-production.
Is it appropriate for producers to ask a staff member to act as the Sexual Harassment Prevention Contact?
The legal responsibility already sits with producers so they need to feel comfortable to appoint a suitable Contact who will be able to perform the role adequately, just as they would appoint a staff member to look after workplace health and safety.
Producers must support and work closely with the Contact officer, just as they would do any staff member whose job involves people management.
Does the Sexual Harassment Prevention Contact give advice or simply document incidents?
It will depend on the nature of the complaint – the key will be to deal with complaints in a way that is fair, timely and confidential, and following a complaints process that is suitable for the scale of the production.
The Contact will also need to ensure that confidentiality is protected and that a person making a complaint is not victimised (because it is against the law to victimise a person making such a complaint).
Can there be multiple Contacts throughout the production period?
Yes. Producers should staff the role as appropriate for the size and length of their production.
What if an employee does not have faith in the Contact Officer?
A complainant can also go directly to the producer, as ultimately it is the producer’s responsibility to adhere to the Code.
There are other avenues as outlined in the fact sheet.
Does it apply to employees on payroll only?
No, the Code applies to everyone that is involved in the production e.g. contractors, consultants and subcontractors. This is because employer responsibilities cover all ‘workers’, no matter how they are engaged.
Is it practical for Screen Australia to expect producers to be able to enforce the Code on contractors who may be located in different locations e.g. casting agencies?
All businesses must adhere to the Sex Discrimination Act and state/territory-based law. The Code simply gives producers another tool to meet these existing responsibilities, and allows them to set the tone for how they expect all people working on a production to behave.
In practice, the Code applies to anyone working directly on the production (regardless of whether they are staff, freelancers, contractors, interns/placements/attachments) and affiliated businesses working on the production (e.g. casting agents).
What if Screen Australia funds a production that has already started filming?
The producer must apply the Code from the date of Screen Australia funding approval until the Delivery Date. In practice, that means everyone working on the production must receive the Code as quickly as possible once the producer knows they will get Screen Australia funding, irrespective of whether participants have already been working on the project.
What if a producer already has a similar Code?
Many employers will already have workplace policies, work health and safety policies, and statements or policies on sexual harassment.
Screen Australia’s Code is a minimum standard designed to be scaled up for larger projects, so producers must activate it in full and verbatim, however they can add extra stipulations or policies as is appropriate for their workplace and business.
Where does the producer’s responsibility to ‘enforce’ the Code end, and the role of law enforcement begin?
All employers, including producers, have a legal obligation to ensure a safe workplace and protect their workers from harm, including from sexual harassment. In the case of criminal conduct, such as sexual assault or indecent exposure etc, these are crimes and should be reported to the police.
A victim of sexual harassment also has the option of independently consulting their union representative, seeking legal representation or going to the Human Rights Commission, as outlined in the fact sheet.
What ramifications are there if producers fail to formally activate the Code on a production?
Failure to comply with the Code will be considered a serious contract breach. As per Screen Australia’s existing Terms of Trade, that puts the producer’s ability to secure funding at risk.
There are two main consequences if a producer does not comply with the Code requirements:
- If a producer fails to submit a declaration demonstrating its compliance with The Code Compliance Report – this will be considered a breach of contract and the final Screen Australia payment on a production will be withheld (typically this represents 5% of the Screen Australia funding).
- If a producer fails to comply with the contractual obligations relating to the Code, they may be in breach of contract and as a result may be deemed ineligible for further funding from Screen Australia under the Terms of Trade.
Notably if a producer does everything in their power to activate the Code on their production, but there is still an incident of sexual harassment, this will not affect their funding as long as the situation is dealt with quickly, sensitively and in accordance with the law and the Code.
How will Screen Australia know if the decleration of compliance with the Code is accurate?
It is a self-reporting process and ultimately it is the producer’s responsibility. If there was serious and credible evidence that there had been a failure to comply with the Code, that would be a serious matter, particularly given that the producer is required to give Screen Australia a statutory declaration that they have complied with the Code. There may be civil and or criminal consequences.
If the MEAA and SPA policy is adopted by industry, will Screen Australia’s Code be replaced by the industry-wide policy?
This will be considered by Screen Australia at the appropriate time.
Do other codes exist?
Australian industry bodies SPA and MEAA are currently working on developing a code.
Overseas, other screen bodies have put forth policies against sexual harassment, including the Producers Guild of America.
How do producers deal with any anticipated costs?
If costs are incurred to enact the Code, producers will need to reflect these in the production budget. However these costs are expected to be minimal.
Screen Australia is currently working with industry bodies to determine if there is a need for online-based training for staff taking on the Sexual Harassment Prevention Contact role.
