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Friday Workplace Briefing

Respect at Work Bill 2022

What impact would the legislation have on your organisation and how should you prepare for the changes?

This week Andrew and Mathew presented a detailed review of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022, discussing the key changes and what employers will need to change, to better prevent and respond to sexual harassment in the workplace.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Episode Transcript

Andrew Douglas: All right, Matt. We’re now going to go on to respect at work. Respect at work. Now can I just make a few passing comments?

Mathew Reiman: Oh, please, Andrew. I enjoy your passing comments.

Andrew Douglas: You know when you go to your favourite coffee shop, you get that nice bitter Italian coffee, a Lavazza coffee.

Mathew Reiman: Yep.

Andrew Douglas: And someone serves you Nescafe. You feel underwhelmed, don’t you?

Mathew Reiman: Mm. In the little paper. Yeah, yeah, yeah. Very underwhelmed.

Andrew Douglas: Well that’s the Respect at Work Bill. The Respect at Work Bill is Nescafe when we should had Lavazza.

Mathew Reiman: Yeah.

Andrew Douglas: It was a process where Kate Jenkins was engaged by the Liberal National Government who were at that stage swarming with allegations of sexual impropriety in Parliament House.

Mathew Reiman: Mm-hmm, mm-hmm.

Andrew Douglas: Some which are currently being litigated in the Bill.

Mathew Reiman: Yep. And their reaction to that was to get a report done on Respect at Work.

Andrew Douglas: Yep. These are some of the most benign recommendations and of the, whatever it was, 46-

Mathew Reiman: 40, yeah 45, 46. Something like that, yeah.

Andrew Douglas: For some reason they only adopted five as… The Liberal National party adopted five. Which is a nonsense, ’cause as we go through them there are only five key issues where there is a substantive change and they’re still relatively benign as well.

Mathew Reiman: That’s right. Yeah.

Andrew Douglas: So we’ll see incremental growth, and we’re seeing already the push in Victoria to make these types of things much stronger and to provide gender equality in a much more real sense and gender safety in a real sense.

Yeah, gender safety being the key one Andrew.

Andrew Douglas: But look mate, let’s just jump down to it.

Mathew Reiman: Yeah.

Andrew Douglas: First thing is a positive duty.

Mathew Reiman: Yeah.

Andrew Douglas: I’ll say briefly, one of the interesting things this moves away from the employer concept to a PCBU.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: Which is a real issue when we’ve been working in joint ventures and collaboratively with other businesses.

Mathew Reiman: Yeah. Yep.

Andrew Douglas: About how we manage all parties in that collaborative process.

Mathew Reiman: Yeah, that’s right. The contractors and so on.

Andrew Douglas: But Matt, what are the other ones?

Mathew Reiman: Yeah, look, I think it’s key, and I’ll read straight from it, to make sure I get it absolutely right. So employer or PCBU must take reasonable and proportion measures to eliminate, I think that’s the key word here, as far as possible, discrimination on a basis of a person’s sex, sexual harassment or harassment on the basis of sex, hostile workplace environments, which we’ll come back to, and acts of victimisation that relate to any complaints or proceedings about the above.

Andrew Douglas: Okay. And what that really means is, what you must do now is set up a system which is a defensible system which has monitoring and reporting within it-

Mathew Reiman: Yeah.

Andrew Douglas: to demonstrate that you are complying with it. It’s not a big risk, as the regulators will say, as a tiger who someone removed all their teeth. But it is a huge risk in very aggressive litigation.

Mathew Reiman: Yeah.

Andrew Douglas: If you’re unable to do that, you’re already breached, you’re already in trouble.

Mathew Reiman: Yeah. That’s right.

Andrew Douglas: Okay?

Mathew Reiman: Yeah. That’s exactly right. Like if you haven’t taken those steps that we’re talking about here, reviewing your policies, having good governance in place, you’re already breached the duty.

Andrew Douglas: And that’s not a good place to start any formal litigation from.

Mathew Reiman: No. No.

Andrew Douglas: And the other part is, if we really care about people, we do monitor and report against it.

Mathew Reiman: Yeah.

Andrew Douglas: To make sure that we’re constantly improving our workplace. So that’s-

Mathew Reiman: It’s not asking you to do anything differently than you should already be doing.

Andrew Douglas: The enforcement powers, I’d started giggling as I approached the bottom.

Mathew Reiman: Yeah, got a good laugh at them.

Andrew Douglas: So there’s really none until 12 months after it comes in.

Mathew Reiman: Yeah.

Andrew Douglas: And then there’s a cat sitting there with a bowl of cream in front of it.

Mathew Reiman: Yeah. It’s a bit convoluted to me. I mean it’s-

Andrew Douglas: Remember they have no resources.

Mathew Reiman: No, that’s right. That’s right. It’s not your fair work inspector from the ombudsman, sort of knocking on your door with the notice. You know, it’s, oh the AHRC send you a letter basically and tell you, look, we think you’ve breached the duty, and you get a chance to explain and then they’ll make a decision and you can appeal that decision. Then it’s all just, you know.

Andrew Douglas: I reckon actually eventually, after everyone’s fallen asleep and the cats drank all the cream.

Mathew Reiman: That’s right. Yeah.

Andrew Douglas: They can send you off to the federal court.

Mathew Reiman: Yep.

Andrew Douglas: And say, well we want to prosecute this breach.

Mathew Reiman: Yep. Yep.

Andrew Douglas: Yeah. God, I can see you’re all terrified by that.

Mathew Reiman: Yeah. It just does not have the resources. It’s a bit of a impractical solution.

Andrew Douglas: Now Matt, the hostile work environment’s a really interesting part of it.

Mathew Reiman: Yeah.

Andrew Douglas: Tell us what the definition of a hostile work environment is.

Mathew Reiman: Yep. Yep. So it’s, the first person engages in workplace conduct that occurs with a first person, second person, or both work. The second person is in the workplace at the same time as or after the conduct occurs. And a reasonable person having regard to all the circumstances would have anticipated the possibility of the conduct resulting in a workplace environment being offensive, intimidating or humiliating to a person of the sex of the second person by reason of their sex, or a characteristic that appertains or just generally-

Andrew Douglas: So the classic example of this is a couple of boys making slightly sexualised jokes in the hearing of a woman who’s nearby.

Mathew Reiman: Yeah.

Andrew Douglas: It’s not about her.

Mathew Reiman: Yep.

Andrew Douglas: Okay?

Mathew Reiman: No, could be about women generally.

Andrew Douglas: But she feels hurt by it, she feels intimidated because of the male culture that existed.

Mathew Reiman: Yeah.

Andrew Douglas: Now Matt and I have had a lot of discussion about this, but my view is, it is important, and that certainly, Matt agrees with me on that.

Mathew Reiman: Yeah. We’re in agreement on that point.

Andrew Douglas: But yet, no one’s going to issue any proceeding about that.

Mathew Reiman: Yeah.

Andrew Douglas: But when they do issue a proceeding and they particularise 20 examples of a hostile work environment, it’s too late for you. It’s all over.

Mathew Reiman: Yeah.

Andrew Douglas: ‘Cause it is the evidence of culture which courts are most concerned of.

Mathew Reiman: Yeah.

Andrew Douglas: Because what you’re trying to say is, look, we mightn’t have got this one right. There’s a bit of sexualized behaviour. It’s terrible. We don’t condone it. We’ve got policies.

Mathew Reiman: Yeah.

Andrew Douglas: But here’s the 20 examples of a hostile work environment and the courts just going to go you’re making this up on the run.

Mathew Reiman: Yeah. That’s right. And sexual harassment rarely occurs in the absence of the context of a hostile workplace environment. So, where once, you know, you would’ve simply just, as a plaintiff lawyer led the evidence of these things as evidence of the context in which sexual harassment occurs. This is now itself an actionable cause of action that sits alongside the sexual harassment cause.

Andrew Douglas: And look, to Matt’s point that it’s important. It is important. It’s a driver in workplace change.

Mathew Reiman: Yeah.

Andrew Douglas: ‘Cause what it means is you can no longer turn a blind eye.

Mathew Reiman: Yep. Well it’s the after part.

Andrew Douglas: Yeah, yeah.

Mathew Reiman: Yeah.

Andrew Douglas: So look, I totally agree with Matt on that. Represented proceedings.

Mathew Reiman: Yeah, yeah. So look yeah

Andrew Douglas: I’m feeling pretty threatened by this one.

Mathew Reiman: Yeah, yeah. Look, so really just an empowerment of third parties. But you know really, this is targeted towards unions to bring sexual harassment or subjecting to a hostile workplace environment claims on behalf of an employee or fellow person who is a complainant about that sort of behaviour.

Andrew Douglas: And this is going to be used for indicative wedge complaints where someone’s attacking an organisation, they find something with a few leaks, And they decide to industrialise the issue.

Mathew Reiman: That’s right. That’s right.

Andrew Douglas: So we won’t see a lot of it, but it’s there. And you got to understand that it’s being used already by the unions industrially around the use of safety as a method into workplaces.

Mathew Reiman: Yeah.

Andrew Douglas: This becomes another means by which they can enter a workplace to investigate.

Mathew Reiman: Yep.

Andrew Douglas: Becomes another means by which they can bring an action to bring down the leadership of an organisation.

Mathew Reiman: Yes.

Andrew Douglas: By concentrating force on a particular piece of… But as Matt’s quite rightly said, except in education, government and health they’re mainly the male workforces that the unions have strong concentration.

Mathew Reiman: That’s right.

Andrew Douglas: And what we’ve seen out of all of the others, health you think would be the most active space but in fact you never see that union ever litigating on behalf of women.

Mathew Reiman: Yeah.

Andrew Douglas: Which is so bizarre. But anyway, that’s-

Mathew Reiman: So this might change it, but you know, we are not super confident it will.

Andrew Douglas: Then there’s the removal of the cost jurisdiction, which is, this is one I think is either Machiavellian, but I don’t think it was that clever.

Mathew Reiman: Mm.

Andrew Douglas: But this is the death of part of a plaintiff practise, ’cause the plaintiffs use the cost jurisdiction to write a letter of demand and include costs in the final outcome.

Mathew Reiman: Yeah.

Andrew Douglas: Which brought you to the table very fast to set it.

Mathew Reiman: That’s right.

Andrew Douglas: But they’d always throw in the costs of what it would run half of it into it because they’d say, well, you don’t pay that, we will run it.


Andrew Douglas: And so you, instead of paying 40 or $50,000 for a general damages claim, you’re paying $150,000 and a hundred of that was for pre-costs.

Mathew Reiman: Yeah. That’s right. That’s right.

Andrew Douglas: And that’s just gone.

Mathew Reiman: Yeah. Look, it might increase access to unrepresented applicants-

Andrew Douglas: Yes.

Mathew Reiman: So if you’ve dealt with any unfair dismissal or general protections claim with an unrepresented applicant, you know how difficult it can be. So this may create some-

Andrew Douglas: I agree with you. It’ll certainly move people, but every state jurisdiction has a similar cost style around that.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: But you’re right, it does increase availability. But fundamentally it damages the plaintiff business.

Mathew Reiman: That’s right. That’s right.

Andrew Douglas: And that’s why I say, I don’t know whether they thought this through, I don’t know if it was Machiavellian-

Mathew Reiman: I’m not sure.

Andrew Douglas: -and sort of anti plaintiff law firms.

Mathew Reiman: It’s yeah, potentially.

Andrew Douglas: But out of the last 10 cases that I’ve dealt with, every plaintiff lawyer has used Australian Human Rights Commission-

Mathew Reiman: Yeah.

Andrew Douglas: as their target because of the cost-

Mathew Reiman: Yeah, you would always go federal, you’d always go for costs, yeah.

Andrew Douglas: All right, look, that’s a really rapid feed down in the Nescafe of-

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: But let’s just hope that Australians are a bit better than this.

Mathew Reiman: Yeah.

Andrew Douglas: That we actually go, this is a very tepid response to a very real issue. This is not about political screen to be put up in front of bad behaviour. And federal parliament’s not a measure of our life. Our life is the workforce that Matt and I live in the every day.

Mathew Reiman: Yeah.

Andrew Douglas: And we do need better architecture because we’re failing.

Mathew Reiman: Yeah.

Andrew Douglas: And all the current statistics show, the gender pay gap is not getting better.

Mathew Reiman: Yeah.

Andrew Douglas: The gender representation on senior levels is actually not getting better. And I was just chatting to Lisa, who’s one of our principals before, and she raised this issue. And actually it’s the first time I’ve thought of it, but it’s so true. Matt would come into me and if I disagree with Matt, he’ll argue with me. He’d probably not notice that, but it’s true.

Mathew Reiman: No, really, no.

Andrew Douglas: But Matt would never say sorry. But if we look at women, the young women who come into us and we say, “Look, I’m not sure that’s what I want,” they go, “oh, sorry.” And that’s partly because life has conditioned them to apologise for what could be perceived as a failing rather than a learning.

Mathew Reiman: Yeah. Yeah.

Andrew Douglas: That’s the society we have developed.

Mathew Reiman: Yeah.

Andrew Douglas: That Matt and I will never say that. We’ll just go, okay, we’ll have the fight. Okay, I’ll do that. That’s the learning.

Mathew Reiman: It’s our white male privilege, really.

Andrew Douglas: That’s exactly right. But repeatedly women will come into a room and assume it’s their fault when they haven’t got the message or the style that we want. That’s certainly not a culture we want.

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