September 1999 Sexual harassment
The purpose of this Marine Notice is to make ship operators aware of their legal obligations under Part II of the Maritime Transport Act 1994 (MTA) to implement sexual harassment prevention policies aboard their vessels, and to put in place procedures for handling sexual harassment situations.
Information on obligations
Sexual harassment constitutes a hazard under the MTA and is a potential source of harm. Victims of harassment are likely to be distracted from their task, due to worry or an increase in fatigue caused by the stress of the situation. This can affect their ability to perform their duties, including safety functions.
The effect of sexual harassment on the victim can be intensified when the victim is being harassed at sea. This is because the isolation of being on board a vessel prevents that person from gaining the support of family, friends and welfare agencies that they may have had access to had they been ashore. The victim also has no real escape from the situation, as both the harasser and victim are living and working together in a confined space.
Sexual harassment comes within the scope of various obligations contained in Part II of the MTA. Section 8 of the MTA requires employers to take all practicable steps to eliminate a significant hazard. Section 19(1)(a) of the MTA places on the master a duty of responsibility for the crew’s safety and wellbeing. Section 6(a) of the MTA places a general duty on employers of seafarers to provide and maintain a safe working environment on the ship.
To comply with these obligations employers should take all practicable steps to prevent sexual harassment from arising including implementing a sexual harassment prevention policy, and should put in place effective procedures for the handling of any sexual harassment situations that may arise.
For more information about sexual harassment and what to do about it, including sexual harassment prevention training, contact the Human Rights Act Helpdesk; freephone: 0800 496 877 (0800 4 YOUR RIGHTS); e-mail: firstname.lastname@example.org website: www.hrc.co.nz.
The attached Appendix should be read by all ship operators, and copies of it should be distributed by employers of seafarers to each of their employees.
Appendix - Sexual harassment
This Appendix outlines:
- what sexual harassment is
- the dangers of sexual harassment to operational safety, seafarers and employers
- what an employer can do to prevent, and deal with sexual harassment situations
- what people who have been harassed can do to address the issue
What is sexual harassment?
Sexual harassment is unwelcome or offensive sexual behaviour, language or visual material that is repeated or significant enough to have a harmful effect on the individual being sexually harassed. Sexual harassment can also include an implied or overt promise of some kind of preferential treatment or an implied or overt threat of detrimental treatment.
Sexual harassment may be between people of different sexes or people of the same sex. A harasser can include a superior, co-worker, subordinate, client or customer.
To determine whether someone has been sexually harassed requires a subjective assessment of whether the individual receiving the behaviour considers it to be offensive. Whether the harasser considers the behaviour complained about to be offensive is irrelevant.
Examples of sexual harassment
Sexual harassment can include:
- sexual jokes, offensive telephone calls
- sexual propositions or repeated requests for dates
- physical contact such as patting, pinching or touching in a sexual way
- unnecessary familiarity such as deliberately brushing against a person
- uninvited kisses or embraces • unwelcome and uncalled for remarks or innuendo about a person’s private life
- wolf whistles, cat calls, obscene gestures
- indecent exposure
- displays of obscene or pornographic photographs, pictures, posters, reading material
Sexual harassment does not include:
- consenting relationships mutually enjoyed between colleagues
- jokes mutually enjoyed between colleagues
Why should sexual harassment on ships be stopped?
- everyone should be treated with dignity and respect
- victims of harassment are likely to be distracted from their task, due to worry or an increase in fatigue caused by the stress of the situation. This can affect their ability to perform their shipboard duties, including safety functions
- sexual harassment is illegal
Sexual harassment and the law
Maritime Transport Act 1994
Sexual harassment comes within the scope of various obligations contained in Part II of this Act. Employers are required to take all practicable steps to eliminate a significant hazard. The Master has a duty of responsibility for the crew’s safety and wellbeing. There is a general duty on employers of seafarers to provide and maintain a safe working environment on the ship.
The Director may also suspend from employment on a New Zealand ship a person convicted of a violent crime, such as a sexual assault, where the Director considers such action necessary in the interests of maritime safety. The Director may revoke, suspend or impose conditions upon a person’s maritime document.
Human Rights Act 1993
Sexual harassment is unlawful under this Act where occurs in the area of employment, and also where it occurs in other areas specified in this Act. The Act makes it unlawful for an employee, a customer or a client of an employer to harass another employee of that employer. It is also unlawful for customers and clients on board ships to be sexually harassed. Liability for sexual harassment under this Act rests with the harasser, and also with the employer in certain circumstances.
The Employment Contracts Act 1991
Sexual harassment is unlawful under this Act where it occurs in employment. The harasser is liable under this Act for sexual harassment. The employer is also liable for sexual harassment by the employer personally, a representative of the employer or a co-worker, client or customer of the employer.
The Crimes Act 1961
The Police may prosecute a harasser under this Act if there has been serious sexual harassment involving sexual or physical assault.
What can an employer do to prevent or respond to sexual harassment?
- put in place a sexual harassment prevention policy
- put in place procedures for dealing fairly with sexual harassment complaints
- ensure that all seafarers are aware of their rights and responsibilities with regard to sexual harassment
What should a seafarer do if s/he has been sexually harassed?
A person who has been sexually harassed and seeks assistance has a number of options:
- write a private letter to the harasser or approach the harasser in private, and clearly request that they desist
- approach the master of the vessel or a representative of the owner ashore (such as a marine manager)
- seek assistance from their employee representative group (such as a Union)
- make a complaint to the Human Rights Commission or lodge a personal grievance under the Employment Contracts Act 1991
- in cases of sexual assault, lodge a complaint with the Police
Defamation is an issue that sometimes arises in sexual harassment complaints because of the potential damage that can be inflicted on a person’s character or reputation. There is a defence to defamation where information is imparted honestly and only to people who have a responsibility to receive it. Anyone involved in a sexual harassment complaint must maintain strict confidentiality and discuss the complaint only with those who have official responsibility for dealing with it.
For more information about sexual harassment and what to do about it, including sexual harassment prevention training, the Human Rights Act Helpdesk can be contacted at:
Freephone 0800 496 877 (0800 4 YOUR RIGHTS)
Website www.hrc.co.nz .
Original source content - Boat Notice 081999, September: Sexual harassment.