What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 18-24 July 2022

Is Your Workplace Ready to Protect Against Psychosocial Hazards?

The Occupational Health and Safety Regulations in Victoria are expected to come into effect in July 2022. It will introduce new definitions relating to ‘psychosocial hazards’. This will be defined to mean “any factor or factors… that may arise in the working environment and may cause an employee to experience one or more negative psychological responses that create a risk to their health and safety.” This codifies the employer’s responsibility to protect workers from psychosocial hazards.
This follows the High Court decision of Kozarov v State of Victoria, in which the Office of Public Prosecutions was found to have failed to take reasonable steps to protect the mental health of Ms Kozarov. The case further discussed psychosocial hazards.

This follows on from WA, introducing a Code of Practice Psychosocial Hazards in March 2022 (Psychosocial hazards in the workplace – code of practice (commerce.wa.gov.au)) and NSW, introducing a Code of Practice Managing Psychosocial Hazards at Work in May 2021 – Code of Practice: Managing psychosocial hazards at work | SafeWork NSW

MPs To Undergo Mandatory Anti-Bullying and Harassment Training Under Albanese Government’s New Code of Conduct

The new government’s code of conduct will continue mandatory training for parliamentarians and staffers on anti-bullying and harassment. The training was initially implemented in 2021. However, only 111 out of 151 MPs and 71 out of 76 senators completed the last training. The training will be held annually.

Statement On Sexual Misconduct in The Australian Defence Force

On 21 July the Australian Defence Force (ADF) released a statement on sexual misconduct. The statement condemned sexual misconduct and stated all allegations in the ADF are taken very seriously. Sexual misconduct does not align with the ADF’s values. However, the ADF acknowledged its past failures in adequately dealing with incidents of sexual misconduct. The ADF has developed its frameworks to deal with sexual misconduct since 2012, including training and preventative measures. The ADF aims to make its employees feel safe and encouraged them to report to the ADF and relevant Police force.

Australia Doesn’t Have a National Strategy To Curb Racism. There’s A New Push to Change That

The Race Discrimination Commissioner, Chin Tan, has spoken on the need for a National Anti-Racism Framework to protect Australians from racial discrimination. Since the Covid-19 outbreak there has been a rise in anti-Asian sentiment. There has also been a rise in discrimination against Indigenous Australians, Jewish and Muslim groups in recent years. The Black Lives Matter movement led to more incidents targeting Aboriginal Australians. The Christchurch incident was related to increased Islamophobia. Mr Chin Tan said there is still a limited understanding of racism and racial-equality in Australia. He said there is a great need for improved data collection, evaluation and sharing.

Religious Discrimination in Employment In Victorian Schools: The Exceptions Narrow

The Equal Opportunity Act 2010 (Vic) was amended in June 2022 to address the balance between religious discrimination and other rights. The changes are particularly applicable to employment practices of schools, where the issue of religious discrimination has been most topical. The amendments limit the exceptions for schools in employment practices. The changes prevent religious schools from depending on the exception of religious belief to discriminate against employees and students on the basis of sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity. There is an exception that permits a school to discriminate against an employee or prospective employee on the following grounds: (1) conforming with the doctrines, beliefs or principles of the school’s religion is an inherent requirement of the position; (2) the employee cannot meet that inherent requirement because of their religious belief or activity (or lack of); and (3) the discrimination would be reasonable and proportionate in the circumstances.

Australia: Changes to The Western Australia Industrial Relations Act

In June 2022, the Industrial Relations Legislation Amendment Act 2021 was passed making changes to the Industrial Relations Act 1979 (WA). These changes included an expansion of the definition of ‘employee’ to include foreign states and consulates, as well as domestic employees. The amendments also extended the WAIRC’s jurisdiction to include powers to stop bullying and sexual harassment which align with provisions in the Fair Work Act 2009. These changes apply to all employment relationships under the WA State industrial relationship system, including non-for profit organisations.

A stop bullying order can be obtained by a person who reasonably believes they have been bullied or sexually harassed at work through an application to WAIRC. More information is available at: https://www.commerce.wa.gov.au/sites/default/files/atoms/files/new_stop_bullying_and_sexual_harassment_provisions_fact_sheet_2022.pdf

A new protection was made to prevent employers taking ‘damaging action’ against employees who make an employment-related inquiry. Damaging action includes refusing to employ a prospective employee, or discriminating against a prospective employee, in their proposed terms and conditions of employment (or threatening to do either of these things). More information on damaging action is available at: https://www.commerce.wa.gov.au/labour-relations/damaging-action

Family and domestic violence leave has been introduced. Full time, part time and casual employees will all be entitled to five days’ unpaid family and domestic violence leave per year. An employee is able to take unpaid family and domestic violence leave if: (1) the employee is experiencing family and domestic violence; and (2) the employee needs to do something to deal with the impact of the family and domestic violence; and (3) it is impractical for the employee to do that thing outside the employee’s ordinary hours of work. The fact sheet is available at: https://www.commerce.wa.gov.au/sites/default/files/atoms/files/new_unpaid_family_and_domestic_violence_leave_entitlement_fact_sheet_2022.pdf

‘It’s Easier to Stay Silent’ About Bullying In Law

Some leading female lawyers have spoken about the difficulty in discussing bullying in the legal profession, leading to a code of silence. This comes just two years after the International Bar Association published its report on sexual harassment being “rife” in the Australian legal profession. 73 percent of female respondents reported having been bullied in connection with their legal employment. Dissimilarly, the 2021 Annual Profile of Solicitors in NSW was released this month, showing that the legal profession is becoming more culturally diverse. This is a positive sign of inclusion, in stark contrast to the level of bullying employees receive once in the profession.