Join our

mailing list.

Keep up to date with our latest insights.

  • This field is for validation purposes and should be left unchanged.
Friday Workplace Briefing

What You Must Do to Meet the New Positive Obligations to Women in the Workplace

Andrew Douglas and Nina Hoang discuss what you must do to meet the new positive obligations to women in the workplace. To view the full episode and catch up with the week’s latest news and developments please visit this link.

Stay updated with our Friday Workplace Briefing

Subscribe to receive the latest Friday Workplace Briefing in your inbox every Friday, where you can hear the critical news and developments that affect your workplace.

Listen to podcast

About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Okay, we’re going to deal with the issue today which I think, is being really misunderstood. And it’s being dragged by lawyers into talking about what the changes are going to be, rather than what is the impact. So-

Nina Hoang: From a compliance focus, yeah.

Andrew Douglas: So we’ve got the changes in the Respect@Work and under the Secure Jobs. In really simple terms, this is what it does. It creates positive duty, around the way women are treated in the workplace. Not just sexual harassment.

Nina Hoang: No.

Andrew Douglas: But around discriminations or characteristics. Now, a characteristic of an attribute ‘women’ is this, I say to Nina, “Okay Nina, look at it be. We really do need you to work full-time and I know that’s a bit difficult because after all you’re probably going to have kids.” Okay? You’ve noticed I’ve moved from an attribute, to talking about a story about what happens to women who are Nina’s age. That’s a characteristic, okay. Now the important part of the change to legislation that saying is, you can’t allow any of that to occur and you can’t allow or have an environment which permits, even if it’s not directed at Nina, an expression of that.

Nina Hoang: Yeah. Otherwise it’s condoning that behaviour.

Andrew Douglas: Yeah and then it goes down this path of saying, now don’t forget all of these things which are protected under Respect@Work and the new process of being able to litigate it more simply under Fair Work Act, is underwritten by these actually being psychological hazards in Safety Law. So-

Nina Hoang: Which have always existed.

Andrew Douglas: But is now much more frankly described. So you’ve got this incredible clarity. Discrimination is much easier to prove. You’ve got a positive duty. You’ve got the hostile work environment that says, behaviours that aren’t directed towards a person are still unlawful. What does that mean as you wash it through? So let me talk about what it means and then we’ll talk about what you’ve got to do. Cause what both Nina and I want to say is, the next person who says to you, “Oh, you just need to tweak the policy.” I give you permission to hit them because it’s stupid and wrong.

Nina Hoang: No, we are not condoning violence.

Andrew Douglas: Aren’t we? Okay, we’re not. I don’t give you, I withdraw that permission. But I want you to say to them, “Just go and think for a bit.” The effect of these changes is dramatic-

Nina Hoang: It’s huge.

Andrew Douglas: Because it goes through the safety lens and says, To actually execute a positive duty, you must know the evidence of risk.

Nina Hoang: Yep.

Andrew Douglas: So that means, you need to have a system in place that collects the evidence which may be very different in every environment. And it’s not about Andrew’s at risk cause he harasses people. It is culturally, and these are cultural risks. What are the types of permitted behaviours that exist in the workplace, that create a potentially hostile environment? And as Nina said, as we were chatting before, remember you have three steps. It starts off with a sort of hostile environment, which has somebody with a rude drawing on their locker. It builds to a stage where people are treated different, discrimination.

Nina Hoang: Yeah.

Andrew Douglas: And it ends up in sexual harassment.

Nina Hoang: Yeah. I think that’s the main mistake, Andrew, that everyone focuses on the sexual harassment side, where it’s crystallised into something that’s clearly offensive. But they ignore the fact that there’s been all these underlying factors in the background, that’s built up to that point. All the discrimination, all the banter, inappropriate jokes that they’ve said, “Oh, you know, it’s not a big deal.” None of that is conducive to a safe work environment.

Andrew Douglas: And they’re the hazards.

Nina Hoang: Exactly and that’s what makes it a hostile work environment.

Andrew Douglas: So we’ve got to find the evidence of where the hazards are. That’s actually a deep dive. It’s evidence based. Okay?

Nina Hoang: Yeah. It has be.

Andrew Douglas: Once you’ve got that, you can then start to determine, what are the actions around positive duty. But the positive duty is a cultural issue. It is not about merely a policy. It’s about saying, “How do I align our productive output with the behaviours that protect women, in the environment?”

Nina Hoang: And it can’t be a blanket approach, which is why you can’t just tweak a policy. It has to be tailored, like Andrew said, to that evidence. Otherwise it’s not going to work under Safety Law or Employment Law.

Andrew Douglas: And a system requires you to have a plan that’s built upon that evidence, which is risk based. It requires you then to develop the process underneath, which will be policy, contractual-

Nina Hoang: Yeah.

Andrew Douglas: But also, actually how we do it-

Nina Hoang: And then monitor it.

Andrew Douglas: Then well then let me go. I was going to speak about the monitoring. We’ll get to monitoring. But then got to actually have a training regime, that’s built, that actually educates and makes people competent. I’ve then got to make sure supervisors know that.

Nina Hoang: Yeah.

Andrew Douglas: Lead it and are satisfied that the people who work for them, are competent and executing every day. I then start to monitor it and then I must report back against the plan. That’s what a system is. It’s not tweaking a bloody policy.

Nina Hoang: No. It’s so much more in depth.

Andrew Douglas: So I want you to think about this as a cultural phenomenon. Okay. This is something that’s going to take two or three years to affect. I can tell you in all the workplaces that we deal with, we see the symbols of that failure in different workplaces because we tolerate so many of those small hostile work environment behaviours. And what Nina and I have been trying to say, all last year and again this year is, once you can demonstrate there’s a hostile workplace you’re in strife.

Nina Hoang: Yeah.

Andrew Douglas: Because when the eventual big claim of discrimination or harassment comes, what you’ve got because of the positive duty, is evidence of condemnation.

Nina Hoang: Yeah.

Andrew Douglas: Which means the claim which would’ve added general damages of 10 or $15,000, suddenly has a $200,000.

Nina Hoang: It opens the door wide open because then if there’s a hostile work environment, many people from that can make claims as well.

Andrew Douglas: Yeah.

Nina Hoang: So it’s not just confined to one specific issue at all.

Andrew Douglas: And the last part is, the unions are dying in front of us but they are already in the environments that Nina and I are working in. Starting to grab hold of psychological hazards as a new tool. And they will take this because they’re actually allowed to bring the proceedings.

Nina Hoang: Yep.

Andrew Douglas: So they’re allowed to bring representative proceedings, to run these things, which will become a way of them marking a new footprint in your workplace. Now fortunately, unions are historically misogynist and have not done well with sexual harassment stuff. Mainly because of their own problems internally. But that is also changing and so is the gender makeup of unions. So this will become a new method of attack.

Nina Hoang: Yep.

Andrew Douglas: The answer for us is, actually this is a really good moral place. It creates an environment which is attractive for retention. It makes work better, more productive. It’s a good thing.

Nina Hoang: Yeah.

Andrew Douglas: So there’s a good purpose behind it. But the change needs to be done based on evidence, it needs to be incremental, it needs to be reported, monitored, managed. You need to grow it.

Nina Hoang: And everyone has to own it. You can’t just hand it off to the HR Manager and say, “You roll it out and it’ll be fine.” It involves every part of the organisation, living and breathing this new culture.

Andrew Douglas: So, let’s talk about just the steps that it takes. So the first part is, get the evidence right. Okay. The second part is, when you’ve got the evidence identify what is the low hanging fruit you can achieve immediately and build that as a competency into the people who are leading. Okay. Do you see this is not about policy yet? At the moment we’re just finding out what the problem… Imagine going to a doctor and the doctor says, “Take the medication.” And you go, “Why?” And he goes, “I reckon it’ll work.” I reckon it’ll work, that’s tweaking a policy. We first of all need to know what the problem is because that’s how we allocate resources. Reasonable practicability says, identify hazard, determine the level of risk, institute a control, using the resource, the organisation. So you must identify that particular budgetary resource that executes that.. Build a competency, to execute against it, so that your leaders can manage and see how it aligns with productivity, cause it does.

Nina Hoang: Yep.

Andrew Douglas: And that’s just stage one, before we even get to writing the process. Then once we’ve done the plan, we say, “Well what are the bits of the puzzle we need, in process to do that?” The competency part of it, the supervision and management part of it?

Nina Hoang: The training.

Andrew Douglas: The training part. Yeah, there’s some policy and procedure in there. There’ll be some contractual variations-

Nina Hoang: They’re small, they’re tiny-

Andrew Douglas: As we rewrite what is serious misconduct for the purpose of summary termination.

Nina Hoang: Yeah.

Andrew Douglas: All pretty straightforward. But then we come down and say, “Well what does the most effective method of training look like?” And as Nina and I said, most of this is day-to-day touchpoint training. Of me supervising Nina and saying, “Relationships matter. Tell me what’s happening with your staff.” What have you seen? And we start doing hazard identification together and go, “Well what do we need to do?” We call upon the resource of the organisation. They say, “You can’t let that happen.” We go, “Good. Okay, what do I do?” Every day, it’s that accrued learning that allows you to develop a safe place.

Nina Hoang: That’s the only training that’s going to work. Not that once a year online training. Tick off your compliance-

Andrew Douglas: Even sexual harassment training is so successful.

Nina Hoang: Ahhh.

Andrew Douglas: Once a year. Don’t do this. And the first five files we get every January, are sexual harassment claims.

Nina Hoang: Yeah, exactly.

Andrew Douglas: So, what we’re trying to say to you is, please don’t listen to the easy way. Don’t take the compliance story where people go, “I’ll come in and do a policy and change a contract.” Because that’s the smallest bit in this big puzzle. The big bit is, getting it right.

Nina Hoang: Yep.

Andrew Douglas: And the prosecutorial risk that sits around this, the litigation risks around this, are massive. And as far as retention and attraction of talent go, you have an environment that doesn’t address this, your business is damaged.

Nina Hoang: I just want to say, the most common excuse I hear is, “Look, it’s too much. It’s so overwhelming. How can we even tackle it?” But if you just take each of the steps of the plan, one bit at a time and chip away it, that’s how you change the culture. Like Andrew said, it’s touchpoint training. It’s not re-hauling your whole system at once and you know spending thousands and thousands of dollars on it, cause that doesn’t work.

Andrew Douglas: No. And the obvious one is, it’s normally language which is the problem.

Nina Hoang: Yeah.

Andrew Douglas: So the hostile work environment is usually around language and attitude. So, it’s not hard to have the conversation that identifies the risk. And then when I’m managing somebody saying, “Look, this is what we see the risk is, can you not use this language? This is what I want you to do and let’s talk about me daily, how you going with it? And don’t worry if you stuff up but come back to me and tell me.”

Nina Hoang: Yeah.

Andrew Douglas: Okay. Easy. Well that’s very different than what you’ve probably ever heard about Respect@Work and the Secure Jobs part of it because that’s actually the truth. And we don’t want people doing quick fixes, we want them getting it right.

Nina Hoang: Truth from lawyers. Shocking.

Andrew Douglas: I know we should sort of tap at that stage, shouldn’t we? But it’s early in the year, we start lying later on. Okay. So let’s go onto our problem today, which sort of conflates all those issues for a bit of a test. And Nina’s going to read it cause my voice is gone.

Andrew Douglas: So, Brett is a production manager at Strawman PTY Ltd (Strawman), a wholesale nursery for the landscaping market. He had around 230 employees working through a linear house system from germination, seedling, cultivation, potting and packaging.

It was a rural business, employing mostly women frequently of non-English speaking backgrounds, or at least where it is not their first language. He had seen over time, that the male supervisors assumed the women were unskilled at problem solving, no good on tools or with machines.

Their habit was to distribute the grunt work, which was repetitive and backbreaking to women and joke between them, that type of work was women’s work. The nature of the work meant they had less chance to progress, higher injury rates and it was dreary, uninteresting work, well beneath their actual skills and intelligence.

Amy was a 27-year-old Malaysian woman, who had married the local bar man at the hotel nearest to the worksite. He was 56. She had worked in IT in Malaysia and in in Melbourne when she first moved to Australia and had a Bachelor of Computer Science from the University of Malaysia. She fell pregnant shortly after marrying her husband in Australia and had to give up hopes of a white collar job, as none were available in the country town.

Brett saw Daniel, Amy’s boss, speak in a slow, silly way to Amy. Amy was fluent in English. There was no need. When Amy raised ways of doing the work more effectively, with greater rotations, he would say things like, “Stick to your knitting, love! What would you know? Come on, just do the women’s work and stop trying to be a smart arse.”

Like with the other young women around him, he often looked inappropriately at women like Amy, ogling them and making snide jokes with the other guys about their relative attractiveness. It was well known he did it. Brett had told him to stop it, but sometimes found himself giggling at Daniel’s looks and jokes.

The impact of behaviour caused Amy to withdraw, she didn’t want to go to work and her husband told Brett, “You guys are killing her.” Brett spoke to her and she cried and had to go home. She was angry and humiliated that her husband had spoken to her boss. She went to see a doctor who gave her a certificate of capacity, alleging bullying and sexual harassment. The Doctor said it was unsafe for her to return to work.

Andrew Douglas: Alright, so now we’ve got the questions. We’re doing the questions slightly differently this year, cause we’re sort of broadening out what the answers were going to be rather than just saying yes’s or no’s. That’s my improvement. Um, so the first question is, were there psychological hazards and what were they?

Nina Hoang: There were so many. Like putting even aside the sexual harassment-

Andrew Douglas: Let’s talk about what’s psychological, you know, the usual ones and walk this on.

Nina Hoang: Yes. Low job demands. Look she was doing jobs that were completely beneath her, low recognition, um she basically had no support provided to her as well. Just things that people think are small, that build-up over time-

Andrew Douglas: So, remember in psychological hazards they fall into two parts. The egregiously wrong ones of sexual harassment, discrimination, bullying-

Nina Hoang: Bullying, yep.

Andrew Douglas: Okay. They were all present as well.

Nina Hoang: Yeah.

Andrew Douglas: I just might like to add. But then you had the other five that sit there, which are, reward, recognition, utilisation of skill, volumes of work-

Nina Hoang: Yep.

Andrew Douglas: All of those elements are wrong and go towards a particular attribute. So that draws in Respect@Work and fair work issues as well. But the important thing here is, every single psychological hazard identified in the regulations, was present.

Nina Hoang: Yeah and drew in Safety Law as well.

Andrew Douglas: Yeah. So, what could happen to who? The answer is, this is a prosecution waiting to happen. So when people think about sexual harassment and discrimination, historically we go, “Well general protections or discrimination?”

Nina Hoang: Yeah.

Andrew Douglas: But the change in the legislation in Safety Law, although it’s always existed as we’ve talked about before, is directed at stopping this using actual directions from the regulator. So you could get notices, like stop orders basically saying, “You must stop this behaviour immediately.” You will certainly get improvement notices and you will get a prosecution. And because of the historical nature of this… So prosecutions in safety arise, particularly where there is a knowledge of a past behaviour, or failure to respond to it and then a behaviour causes damage. So they’re the factual bases that trigger a prosecution.

Nina Hoang: Yep.

Andrew Douglas: They’re here, aren’t they Nina?

Nina Hoang: Yeah, they are and the thing with safety prosecutions is, they just don’t just look at that one issue. We all know that psychological hazards is a huge focus area for all the regulators this year. If they get wind that there’s some psychological hazards here, they’re going to look at the wide organisation and see how far this goes.

Andrew Douglas: And so we’ve got… There could be a prosecution and the answer is, there’s certainly a primary duty breach, okay? So what you can show there is, there’s hazards that exists, they haven’t been analysed as to the level of risk, that should be high to extreme.

Nina Hoang: Yeah.

Andrew Douglas: There’s been, the only control that’s been used-

Nina Hoang: There’s no control.

Andrew Douglas: Is to say no one, one small part of it.

Nina Hoang: It’s not a control.

Andrew Douglas: Yeah I know, it’s not a control. And there’s no allocation of resource. So they haven’t done everything reasonably practical. So it’s not a safe working environment. The lowest level risk, there’s no training that shows that they’re trying to prevent it.

Nina Hoang: Obstruction really.

Andrew Douglas: So that’s the next level up of risk. There’s no proper supervision.

Nina Hoang: No.

Andrew Douglas: Next level-

Nina Hoang: No systems of work.

Andrew Douglas: No systems of work at all. So that means it’s the highest level of primary duty breach, but that means it throws up to officer risk, under Section 144 and the related Section 27’s in the other legislations, the model legislation.

Nina Hoang: Yep.

Andrew Douglas: So what we’ve just shown you is, you’ve gone from path which is an escalation up to the highest primary duty breach, to officer liability. Let’s just drop back down again and say, “Well that’s bad. That’s $300-$600,000 type penalties.”

Nina Hoang: Yeah.

Andrew Douglas: Maybe a bit more, maybe a bit less. But then you’ve really got reckless endangerment because this is something that everyone understands, causes serious risk of harm or damage and they were careless about any intervention.

Nina Hoang: Yeah. And that’s the thing, like a lot of employers think, “Oh, I’ve said no once, then that’s fine.” That still means you’re reckless cause you haven’t actually implemented a control to reduce or eliminate the risk.

Andrew Douglas: So this is a go to jail risk. I just want to, I guess what I want to say is, we think we’re talking about discrimination, we think we’re talking about harassment, but what we’re actually talking about first, is the risk of someone going to jail.

Nina Hoang: Yep.

Andrew Douglas: And massive reputational damage in the public arena, okay. So look, that’s what I want to stay on with. And then the next question is… Did the behaviour breach any obligations under the New Respect@Work and Secure Jobs provisions and what could Amy do?

Nina Hoang: Yeah, a hostile work environment.

Andrew Douglas: Yeah. So, if you’ve got a hostile work environment.

Nina Hoang: Definitely sexual harassment claim-

Andrew Douglas: Definitely discrimination-

Nina Hoang: Straight all the way to the federal court.

Andrew Douglas: Yep. Discrimination. It’s all there. Every single breach you could have that relates to gender.

Nina Hoang: Yeah.

Andrew Douglas: Believes. The next question is what would you do about it? And the answer is, you’ve now got this buffet of things you can do. You can go through the Respect Act Discrimination and you’ve got that lovely pleading of hostile work environment, which means you’ve got a really big general damages claim.

Nina Hoang: Yep.

Andrew Douglas: But why wouldn’t you just go through the Federal Court dispute process, under the new Secure Jobs page.

Nina Hoang: Yeah. It’s so much faster.

Andrew Douglas: File with the Federal Court. You’ve got judges there who are very experienced, who are happy to make big awards.

Nina Hoang: Yep.

Andrew Douglas: And it’s over and done in 18 months. Whereas the other parts, probably a two to three year rollout. So suddenly within two months you’re going to be in for conciliation and you’re going to be hit with this issue around both costs and GD, general damages.

Nina Hoang: And reputational damage too.

Andrew Douglas: Which is going to come. And you’re not going to be settling for 30 or $40,000 cause you’ve got a hostile work environment. You’re going to be settling 150 to $200,000. Scary stuff, isn’t it?

Nina Hoang: Yeah.

Andrew Douglas: And because of the hostile work environment maybe the union is bringing it and you might have-

Nina Hoang: Penalties, they’ll probably seek penalties as well.

Andrew Douglas: Yeah and you’ll have five or six plaintiffs in it, not one.

Nina Hoang: Yeah.

Andrew Douglas: Because the hostile work environment. It will be catastrophic cause if it goes to court, it’s a three week trial.

Nina Hoang: Yeah.

Andrew Douglas: And remember proving hostile work environment, is a couple of photographs.

Nina Hoang: It’s very, very simple.

Andrew Douglas: Yeah. You know, there’s a picture, here’s a joke someone made. That’s it.

Nina Hoang: Yeah. Because everyone always does it over, in writing as well, Andrew.

Andrew Douglas: I know too.

Nina Hoang: It’s so stupid. Yeah. So very easy to prove.

Andrew Douglas: Okay, so we’re going to… How we’re going for time? I’m going to check my phone. We’re going pretty well. We got 1 minute, 43 seconds to go. And that’s about how long workers’ comp deserves. The workers’ comp issue here, looks a bit confusing because you can see there is another form of causation that exists. And that is the husband’s intervention, is the thing that made her humiliated.

Nina Hoang: That’s what actually upset her. Yeah.

Andrew Douglas: Yeah and why she didn’t come to work. But the answer is, it’s a furphy, soon as you can… So a breach of Safety Law, discrimination, Harassment Law or the Fair Work Act, there is no defence of reasonable management action.

Nina Hoang: It’s clearly tied to the place-

Andrew Douglas: So this is a compensable claim. And the fact that her husband intervened, is part of a sequence of causation but not causative. And therefore this would be successful. She would never be back at work. The size of the employer means this premium impact, anywhere in Australia is north of $500,000.

Nina Hoang: Yeah. You got to remember that it’s the substantial cause. It doesn’t have to be one of them and clearly this is substantial-

Andrew Douglas: So, I just want you to remember that, you got this risk of a penalty, you got a risk of damages, none of them as much as the premium risk that just occurred in workers’ compensation. So look, that’s us for this week.

Nina Hoang: Yeah.

Andrew Douglas: Wasn’t that fast?

Nina Hoang: Just flies.

Andrew Douglas: Lovely you’re back. Great to have you here. And thank you all for watching.

Nina Hoang: Lovely to see you all again.

Andrew Douglas: See you next week.

Nina Hoang: Bye.

Andrew Douglas: Bye, bye.

Check this next

Managing change in the workplace is a challenge for all employers. Andrew Douglas and Nina Hoang will talk through the changes across Safety, Industrial Relations, Employee Relations, Workers Compensation and People that employers need to address. To view the full episode and catch up with the week’s latest news and developments please visit this link.…