What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 18 September 2023 – 24 September 2023

Bonuses and Pay Rises Can Be Withheld from Employees and Managers

Employers will be able to withhold bonuses and pay rises from managers and employees in order to prevent sexual harassment and discrimination in the workplace. From December, employers have a positive duty to prevent sexual assault, harassment and similar discriminatory behaviour. The legislation shifts the onus of preventing sexual harassment from a complaints-based system to one that is more proactive. The laws were introduced by the Labor government in relation to several high-profile “scandals” in federal politics. The Australian Human Rights Commission (AHRC) has been charged with policing the new positive duty, suggesting that workplaces “offer pay boosts and gift vouchers” in order to reward employees’ respectful behaviour. Further, the Commission has suggested sanctions in relation to poor conduct of employees, such as blocking pay rises, bonuses, and suspension. The Commission stated that the bonuses served as “one way of ascribing value and importance to respectful behaviour in the workplace.” Further, the AHRC stated that “it can also operate negatively – people becoming ineligible for bonuses if they have been found to have engaged in substantial acts of relevant unlawful conduct.” Employers who fail to comply with their positive duty can be named under a new power given to the AHRC. Further, the AHRC can issue a compliance notice and apply to a court for the notice to be enforced. The director of the Australian Chamber of Commerce and Industry, Jessica Tinsley, stated that “we know that a positive duty to stamp out sexual harassment in the workplace already exists under work, health, and safety laws. Employers will need assistance in understanding their overlapping obligations, or else this complexity will lead to lower compliance rates.”

One Third of Complaints to the Equal Opportunity Commission are Dismissed

The WA Equal Opportunity Commission released its annual report on Thursday this week. The report details that one third of complaints to the Equal Opportunity Commission are being dismissed due to Western Australia’s stagnated laws. Western Australia’s Equal Opportunity Commissioner John Byrne stated this week that “we are finding the Equal Opportunity Act 1984 increasingly restrictive when it comes to community standards of discrimination and harassment.” Further, he said that “more complaints are being dismissed because the Act has not kept pace with some aspects of a modern Western Australia.” The report details that 164 of the 469 complaints in 2022 to 2023 were dismissed, an increase from the 149 complaints last year. The most common ground for complaint was impairment (25.4%), followed by race (16%), victimisation (10.7%), sexual harassment (9.4%) and age (8.7%). The State government announced last year its intention to overhaul the legislation following a review by the Law Reform Commission of Western Australia. The review found that the Act “is not aligned to the needs and aspirations of the Western Australian community.” WA is still waiting for the findings from the review to be translated into new legislation.

Canberra First to Pilot Sexual Assault Service for Victim-Survivors

Canberra has been selected as one of three sites for a national pilot program in order to provide specialised, independent legal advice for sexual assault complainants. It is hoped that the new program will improve the experience of people affected by sexual violence within the Australian Capital Territory (ACT). The program will operate in combination with the Women’s Legal Centre ACT and Victims Support ACT. Further, it will support complainants in navigating through the criminal justice system. Elena Rosenman, chief executive officer of the Women’s Legal Centre, stated that the agencies had seen “a real increase in the number of women that are seeking assistance in relation to sexual violence.” Further, she said “that is what’s driven the establishment and our support for this service.” The ACT Victims of Crime Commissioner Margie Rowe stated that “it is difficult to assert rights without support, and particularly without legal support.” The new program has been introduced following the high-profile case of Bruce Lehrmann. Mr Lehrmann was charged with sexually assaulting his former colleague Brittany Higgins in Parliament House prior to the trial being abandoned due to juror misconduct. Mr Lehrmann has always maintained his innocence. Ms Rowe stated that “what we’re concerned about is that with good reason, many women might feel reluctant or apprehensive about reporting sexual assault or engaging with criminal proceedings related to sexual assault.” The ACT Attorney-General, Shane Rattenbury, stated that “people feel that the system is complex, they don’t feel like they have a voice, and this model offers the opportunity for victim-survivors to feel more empowered.” The pilot program is set to run for a duration of three years.

City of Perth Commences Peace Talks with Former General Counsel

The City of Perth has commenced peace talks with its former general counsel Michelle Antonio and chief executive Michelle Reynolds. Ms Antonio has sued the City of Perth and Ms Reynolds for wrongful termination and victimisation. She has sought relief and damages in relation to the alleged unfair dismissal. Ms Antonio claimed that she was not afforded protections through legislation designed to safeguard whistle-blowers. Ms Antonio was appointed general counsel for the City of Perth in March 2021 before she departed the role in February of this year. The allegations relate to the conduct of the City of Perth and Ms Reynolds in the weeks prior to Ms Antonio’s departure. The lawyer for Ms Antonio, Ms Estelle Blewett, stated on Thursday this week that “we know there’s a report, referenced as an audit report, but until we see it, we don’t know what issues are contained in it… and we effectively have two business days [until mediation].” While the quantum of the claim is unknown, the amount would likely exceed $750,000 due to its lodgement in the Supreme Court.

New Sex Discrimination Commissioner Anna Cody Calls for Respect in Mining Industry

The new Sex Discrimination Commissioner, Anna Cody, has stated this week that fly-in, fly-out (FIFO) workers deserve a safe workplace, regardless of their gender, sexuality, or race. Ms Cody stated that the address to the Women in Mining forum this week was “an opportunity to canvas the issue of discrimination in the mining industry.” Ms Cody stated that sexual harassment is “obviously a key issue, (as is the) importance of women being able to fully participate (in the industry), as well as increase the proportion of women who are working within mining.” Further she stated that “whenever I hear about the impact of sexual harassment on women, I’m really deeply concerned.” Ms Cody said that “having worked in discrimination law and represented complainants, I know the individual toll that it takes on those particular women but also the impact more broadly in the sector because it inhibits the full participation of women in the sector.”

Mediation Scheduled for Whelan Browne Sexual Harassment Claim

Actress Christie Whelan Browne has claimed that she was discriminated against by Oldfield Entertainment and harassed by her 2014 cast-mate Craig McLachlan. Lawyer for Oldfield Entertainment, Bronwyn Byrnes, told the Federal Court on Friday this week that the company had been disadvantaged in responding to the lawsuit. The location of some of the people in the lawsuit was not known and, as a result, they could not be directed to participate in the proceedings. Further, Ms Byrnes claimed that the memories of these individuals would have “diminished significantly.” In addition to this, Oldfield Entertainment did not have access to past criminal and civil proceedings. Ms Byrnes stated that the company had not been aware of the complaint until last week, saying that “until then we had no sensitivity that proceedings were actually going to be launched.” The lawyer for Ms Whelan Browne, Kate Eastman KC, stated that Oldfield Entertainment had been on notice from when the complaint was made to the Australian Human Rights Commission. Ms Eastman stated that “the reasons that have been advanced this morning… are not reasons that should cause any delay.” The case is set to be heard again in December this year, with mediation planned for November.