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Friday Workplace Briefing

New WorkSafe Code – Sexual Harassment

Safe Work Australia’s new code of sexual and gender-based harassment is a game changer supporting safety regulators intrusion into traditional workplace law.

In the first Friday Workplace Briefing of 2024, Andrew Douglas and Nina Hoang will be covering the code, all the latest cases and law changes. The Model Code of Practice provides practical and valuable guidelines to mitigate or eliminate the risk of sexual and gender-based harassment in your workplace.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Let’s just jump over to the main topic ’cause we’re not going to have a tonne of time for it, which is sort of fortunate, really, in some ways. There’s not a lot to say about it. The new code, not surprisingly, moves on from the psychological hazards and uses the same methodology-

Nina Hoang: But it acknowledges the importance of their mentality to use both in conjunction, which is really good, ’cause that’s what you should be doing.

Andrew Douglas: And look, in Victoria, when you looked at that code, that code forms part of the regs and the draught for them, yeah, the draught they put out, both regs and code, which set out the four egregious breach of psychological hazards, one of which was sexual harassment. This deals expressly, it’s got some really helpful directions about, we were just chatting before about the types of things it alerts you to.

Nina Hoang: Yeah.

Andrew Douglas: Which are the hazardous environment and design, and, interestingly, none of it’s only one part, but I think we both agree, we took this, and I went, “Gee, that’s a good reminder.”

Nina Hoang: Yeah.

Andrew Douglas: But the rest of it was the things we say, “Data collection.”

Nina Hoang: Yeah, and getting that internally through easy sources, like, you know, we always say, “Look at your exit interviews, your absenteeism,” like complete-

Andrew Douglas: Your HR records.

Nina Hoang: Yeah, and all that stuff, yeah.

Andrew Douglas: Yeah, do your slice audits. Do those sort of things.

Nina Hoang: Yeah.

Andrew Douglas: Get the information. Do some small surveys.

Nina Hoang: Get consult with your employees.

Andrew Douglas: Yeah, and then get that mud map that says, “Gee, over here, we’ve got an issue.”

Nina Hoang: Yeah.

Andrew Douglas: “Let’s deal with it.” Train people. Make sure they’re competent. Be vigilant, train supervisors. Reward their involvement engagement to prevent-

Nina Hoang: Who shifts from leadership down. All of that is exactly-

Andrew Douglas: All good. Can you see, this isn’t a game changer? But it is a really helpful reminder, but before I skip to the helpful reminder, but the one thing that they did raise, that Nina was talking to me about before is it does go back to workplace design.

Nina Hoang: Yeah.

Andrew Douglas: So if the physical environment is close knit, and let’s use a really good example of the type of environment where this risk is high, and that’s call centres.

Nina Hoang: Yeah.

Andrew Douglas: Where you’ve got itinerant workers. You’ve got a mixture of immigrant workers, itinerant workers. You’ve got high drug and alcohol use through a young group of people who are non-migrant based workers. They’re in very close proximity to each other. They share a small lunchroom together. There’s significant pressure, and it’s repetitive. You get all the bullying behaviours. You get all the sexual harassment. You get all of those things happening because the physical environment is conducive to it, and the other reason is because it’s very difficult to supervise.

Nina Hoang: Yeah.

Andrew Douglas: So environments which push people closely together under stress with an odd mixture of high risk people in the environment are, by nature, high risk. Environments without supervision, incredibly high risk, and that means skilled, competent supervision. So it might be a road crew in local government goes out. Sure, they’ve got a foreman, but he’s been there for 35 years. He’s got a couple of women working there, and he doesn’t really like it.

Nina Hoang: Yeah.

Andrew Douglas: So is he going to say anything when someone makes some sexist joke about, “Can you lift that, love?”

Nina Hoang: Yeah, exactly.

Andrew Douglas: You know, are they going to say those sort of things? They’re the work design issues that this actually focus on, and can I say it’s a great thing. I think this is helpful.

Nina Hoang: I think so, too. Like whenever people think about how do you deal with this kind of stuff, they just think, “Train people, discipline, enforce it,” which is all good. You should be doing all of that, but remember, in the hierarchy of control, the first thing is. to try to eliminate it, and if that means looking at the physical design, like outside of your example of those, there’ll be things like people working in a restaurant, and there are known perpetrators who make gross comments, right, and I’ve talked to friends in the past where they said, “Look, I don’t know what to do. Like they keep coming. They’re regulars.” Well, you shouldn’t be putting people subject to that. You should be changing the roster, doing things like that like-

Andrew Douglas: Oh, and excluding the police.

Nina Hoang: Yeah, people need to think a bit more outside the box, and what this code is saying is you can’t just apply the tried and true normal things that everyone thinks about because if the regulator thinks there’s other ways that you can resolve it, and that they’re better, then you’ll be essentially in breach.

Andrew Douglas: And look, the thing that we really brought this up for, this is my “Chicken Little” stuff is you can see it doesn’t change the world. It is a game changer in this way. It introduces into safety legislation a clear definition of what is reasonably practical around sexual harassment and gender-based violence and discrimination within organisations, didn’t exist before, which means, and as the regulator in all states and territories starts to prosecute issues of bullying and sexual harassment, you’ve, now, got a test that is out there, and for those people who happily say, “Oh, but Victoria hasn’t adopted this.” It doesn’t change.

Nina Hoang: No.

Andrew Douglas: Victorian regulators is allowed to look. Sorry, a Victorian court is allowed to look at what is reasonably practical. It can be informed by industry standards, one of those industry standards, even whether though it hasn’t been adopted is Safe Work Australia as well so-

Nina Hoang: Yeah, and, also, on the employment side, remember, it’s a positive duty to prevent sexual harassment, and as part of that positive duty, you have to look at all available resources, which would include this code.

Andrew Douglas: So look, we better move on ’cause we’re getting onto our favourite topic.

Nina Hoang: Yeah, I would say though, please have a look at it ’cause it’s got really good practical examples, and it’s good resource.

Andrew Douglas: Yeah, and, also, remember, the likelihood of prosecution around sexual harassment has jumped dramatically in the last six months. We’ve seen Victoria, now, up to four prosecutions in it.

Nina Hoang: Yeah.

Andrew Douglas: So I would say, in two to three years’ time, we will have, across Australia, 50 prosecutions around sexual harassment, okay? So once it’s not just plaintiff land that you’re worried about anymore, the regulator is very active in this space.

Nina Hoang: And the union, too.

Andrew Douglas: Okay, let’s hit the case study.

Nina Hoang: Yeah, okay, I’ll read this one.

Christmas is over. The office was quiet, and few people had returned to work in the office. Tony, the Managing Director, was back and working from his large corner office. As he walked past four staff sitting in the kitchen, he asked Helen, the Accounts Clerk, to grab him a coffee from downstairs. When she returned with his coffee, he commented on her tan from the holidays and said she was looking great. She blushed and awkwardly retreated from the room. Out of the company’s 120 staff, only around 10 to 15 were coming to work during January.

Andrew Douglas: Gee, that’s all like our office, really. Next slide.

Nina Hoang: Tony increasingly asked Helen to do menial tasks he would usually attend to himself. He would never ask his PA to do such tasks like get his coffee, put together some papers he was working on, help with his IT issues.

Isn’t that what a PA is for?

In any event, his PA had won his agreement to work from home over January to be near her kids before they return to school. He started to get Helen to do jobs his PA would do.

Andrew Douglas: Indeed, that wasn’t standard to get Helen. That was started that’s-

Nina Hoang: Yeah. Helen was the youngest staff member in each day. She was compliant with all his requests but became increasingly anxious in her dealings with Tony because of his generous but somewhat odd comments around how good she looked, how her hair was done, and makeup. He made no such comments to any other staff, and he looked at her in a way like he was undressing her. He had her in his office more and more each day, doing little things.

She spoke to her manager to see if she could resume her flexible work of three days at work and two days at home. The manager came back and said Tony required her to be at work. She complained to the HR manager about Tony’s conduct towards her and his refusal of flexible work, which was contrary to the practise of the company, her past work arrangements, and the policies.

An hour after complaining to HR, Tony called her to his room. He was obviously angry. He said, “What is wrong, Helen? I give you special attention, support you, and now rely upon you, and, in return, you complain and seek to work more from home. I thought there was a real future for you here, but I was obviously wrong. I thought we had something special.” Before she could respond, he said, “Off you go. Work from home. I won’t need your help anymore. My PA’s back tomorrow.” She left the office confused and in tears.

After the discussion, Tony called in a manager, explained he was disappointed in Helen’s conduct and performance. He was happy for her to work from home as much as she wanted, but if things didn’t improve, she would have to go. Helen’s manager feared Tony. He asked no more questions and left the room to find Helen. The manager spoke to Helen, explained the conversation with Tony, and asked what had happened. She couldn’t speak. She was struggling to breathe and in panic. The manager sent her home and to go see her doctor.

Andrew Douglas: There we go. So did Tony engage in misconduct?

Nina Hoang: Yeah, definitely.

Andrew Douglas: Yeah, okay. Was it harassment?

Nina Hoang: It’s harassment, yeah.

Andrew Douglas: Yeah, so let’s just remember what sexual harassment is, it’s-

Nina Hoang: Unwelcome behaviour of a sexual nature.

Andrew Douglas: Yeah, yup, so definitely, there. Was it discrimination?

Nina Hoang: Yes.

Andrew Douglas: Yes, age, age, gender.

Nina Hoang: Age, gender, yeah.

Andrew Douglas: Yeah, so not good. Anything else under discrimination?

Nina Hoang: Victimisation.

Andrew Douglas: Victimisation, yeah, the moment he didn’t get what he wanted, he then punished her.

Nina Hoang: Yeah. Well, the moment she complained, and he punished her for complaining, yeah.

Andrew Douglas: Yeah, so who would be liable? Now, I put that in because, no doubt, Tony, no doubt, the business, okay? Because Tony is the business in effect as managing director so they’re stuck. Next one, well-

Nina Hoang: Well, what about like the other managers? This one-

Andrew Douglas: Yeah, no, they’re in the loop.

Nina Hoang: Yeah.

Andrew Douglas: They’re in the loop because they didn’t do anything. This includes the HR manager, in this case, to provide her with a safe place of work. So that’s more of an issue as we come down.

Nina Hoang: Yeah, for safety, yeah.

Andrew Douglas: But in discrimination law your plaintiff lawyer would join them just to blow it up.

Nina Hoang: Yeah.

Andrew Douglas: And make everyone scared. Okay?

Nina Hoang: Was his conduct a breach of safety law?

Andrew Douglas: Yeah, again, could she take any other simple and immediate action to stop the behaviour? And the answer is she could get a stop order ’cause there is both bullying and sexual harassment, and the legislation now allows to-

Nina Hoang: But she wouldn’t bother. She would just file a claim straight.

Andrew Douglas: Well, she did both. The advantage is, now, that she can do both. So she could…

Nina Hoang: Yeah, but there’s no point in getting the stop order. You can just file the claim to go after-

Andrew Douglas: Oh, no, you could. So plaintiff lawyer would go for a stop order as well because it’s like an injunction, but it’s a cheap injunction.

Nina Hoang: Yeah, but-

Andrew Douglas: They’re not doing it. I know, but they-

Nina Hoang: It’s like a toothless thing.

Andrew Douglas: I know, but that’s-

Nina Hoang: I don’t how effective it is.

Andrew Douglas: Well, look, it’s not effective when you look at the amount of people who seek bullying orders, but can I say only seven of the bullying orders last year went through to final determination?

Nina Hoang: Yeah.

Andrew Douglas: But that’s ’cause the plaintiff lawyers haven’t woken up. It should be in their quiver of arrows that they’re carrying around. They should use it…

Nina Hoang: A quiver.

Andrew Douglas: Yeah, I was trying to think of something else.

Nina Hoang: Oh, my gosh.

Andrew Douglas: But I made that one up as I went. Called that a breach of safety law, absolutely. Reckless engagement, without doubt for Tony.

Nina Hoang: Yeah.

Andrew Douglas: Organisation, therefore, reckless, and Helen’s manager and the HR manager, low-level breaches, unlikely to be prosecuted.

Nina Hoang: Probably just section 25, right?

Andrew Douglas: Yeah, yeah, but, no, I don’t think they’d be prosecuted, but could be ’cause there’s enough there to do, and the last is, did she have a sound general protections claim?

Nina Hoang: Yes.

Andrew Douglas: Yes, underneath that, I think we go to workers’ comp, don’t we? We go up next page. Yeah, we did. Oh, if other men in the organisation engaged in similar behaviour.

Nina Hoang: Yeah.

Andrew Douglas: Was there a risk of any-

Nina Hoang: That would’ve been is a hostile work environment.

Andrew Douglas: Which is an absolute winner.

Nina Hoang: Yeah.

Andrew Douglas: In relation to serious, serious plaintiff claims.

Nina Hoang: And can I have a class action on your hands, too?

Andrew Douglas: Yeah, true, and would Helen have a sound workers’ comp? Yes, she would, and with the changes in workers’ comp law in Victoria, which make it harder to bring a claim, no, because it wasn’t just workplace stress.

Nina Hoang: Yeah, it wasn’t like, “I’m just stressed. I’ve got anxiety.”

Andrew Douglas: It’s a significant injury.

Nina Hoang: Yeah.

Andrew Douglas: We started talking very fast then, ’cause we ran out of time. Talked too much since our first time back.

Nina Hoang: I got very anxious about time.

Andrew Douglas: So I’m sorry we gabbled towards the end. Lovely to see you although we can’t.

Nina Hoang: Nice to be back, yeah.

Andrew Douglas: And we’re glad to be back, and thanks.

Nina Hoang: We’ll see you next week.

Andrew Douglas: See you later, guys, bye.

Nina Hoang: Give us a thumbs up, bye.

Nina Hoang: Thumbs up, buh-bye.

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