What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 21 – 27 June 2021

Respect@Work Recommendations to be Implemented in New Bill Introduced in Parliament

A bill to amend the Sex Discrimination Act 1984 (Cth), the Fair Work Act 2009 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) has been introduced into the Senate. The bill implements some of the recommendations from the Respect@Work report, and intends to strengthen the legal landscape for dealing with workplace sexual harassment and associated conduct. The bill proposes several changes, including:

• Adding a new express prohibition against “harassment on the grounds of sex.”
• Expanding the application of harassment laws to cover workers and persons conducting a business.
• Broadening the workplace contexts in which harassment laws apply.
• Clarifying the application of the Sex Discrimination Act to include judges, members of Parliament and
public servants.
• Extending the timeframe for Sex Discrimination Act complaints from 6 months to 24 months.
• Clarifying that civil actions for victimisation can be brought in the Federal Court and Federal Circuit
Court, in addition to existing criminal actions.
• Clarifying that sexual harassment can be a valid reason for dismissal.
• Ensuring that a “stop sexual harassment order” is available, comparable to existing anti-bullying orders.

Most significantly “Harassment on the ground of sex” is where:

• a person engages in “unwelcome conduct of a seriously demeaning nature” in relation to another person by
reason of another person’s sex (or a characteristic appertaining generally or generally imputed to that
person’s sex, e.g. gender stereotypes); and
• in circumstances where “a reasonable person, having regard to all the circumstances, would have anticipated
the possibility that the person harassed would be offended, humiliated or intimidated”.

This is intended to capture conduct which falls into the gap between sexual harassment and sex discrimination.
The aim is that this provision will capture the more serious types of sexist behaviour.

Barrister Reprimanded For Simulating Oral Sex With Woman Clerk At Work Dinner

A barrister who pushed a female clerk’s head towards his crotch during a work event has been reprimanded and ordered to pay costs. The female legal professional, dubbed H for anonymity, alleged the barrister had taken hold of the back of her head and “started to move my head to and from his crotch area.” She alleged that he said “suck my dick” and afterwards humorously told her “not to complain to the Bar Association.” The barrister was founded to have engaged in sexually inappropriate conduct. The Civil and Administrative Tribunal (NCAT) said he did so to include her in a “jokey greeting ritual.” They noted it was an “ill-judged attempt…late in the evening after a considerable quantity of alcohol,” and that the barrister had not intended to make H feel angered, offended, embarrassed or humiliated. The NCAT reprimanded the barrister and ordered him to pay costs, however they did not find that the actions warranted more onerous discipline. The NCAT was “very confident that he will never behave in a like manner again,” but said the degree of seriousness warranted a reprimand over a caution. They also found that general deterrence would not be enhanced by the imposition of a fine. Had the incident involved unwarranted sexual advance, an attempt to obtain sexual cooperation by intimidation, threats or other pressure, or a deliberate decision to humiliate anyone, more onerous orders would have been considered.

WA Resources Industry United in Apology to Sexual Assault Victims

Executives from BHP, Rio Tinto, Fortescue Metals Group (FMG), Woodside and Newmont have held a media conference to apologise to those sexually assaulted or harassed on the state’s mine sites. The managers reiterated that they have a “zero tolerance policy” on assault and harassment and are committed to ensuring their workplaces are safe for female employees. Additionally, Premier Mark McGowan announced that the government would support an inquiry into the safety of female workers. A recently established Safe and Respectful Behaviours Working Group will focus on a code of conduct for employees of the Chamber of Minerals and Energy’s member companies, behaviour at external events, after hours activities on site and social media activities. The consumption of alcohol at work sites will also be considered.

FMG Investigating Attempted Rape of Woman at Christmas Creek Mine

Fortescue Metals Group (FMG) has revealed it is assisting a police investigation into the attempted rape of a female worker at one of its Pilbara mine sites. The male contractor has been stood down from the Christmas Creek mine after the alleged sex attack. The incident occurred in April, after an end-of-shift drinking session in the site’s accommodation hub. FMG’s chief executive, Elizabeth Gaines, described the allegations as “deeply distressing and disturbing.” Charges are yet to be laid.

Six in 10 Australian Women of Colour Experience Discrimination at Work

A national survey by advocacy group Women of Colour Australia, in partnership with Murdoch University, has revealed most Australian women of colour don’t feel safe at work. The report surveyed 543 women of colour, with 7% of them identifying as Aboriginal or Torres Strait Islander. The report showed almost 60% of respondents experienced discrimination relating to their identity, such as sex, ethnicity, age or religion. Only one-third of respondents felt their identity as a woman of colour was recognised and valued at work. Furthermore, almost 70% of respondents said no people from diverse backgrounds held senior positions at their places of work. It found many felt they couldn’t make a complaint about discrimination, due to potential repercussions, cultural barriers and not knowing how to undertake the complaints process.

Deloitte Settles Age Discrimination Case with Partner Colin Brown

Deloitte Australia has settled a $3.8 million age discrimination suit brought by current partner, Collin Brown. The suit was brought by Mr Brown after he alleged that Deloitte had never informed him about its alleged retirement policy of partners stepping down at 62 when he joined the company in June 2014. The claim consisted of $3 million in future lost wages and $809 000 lost wages due to his move from Mongolia-based Deloitte Onch Audit ILLC. He said he believed he would be kept on as a partner for at least 10 years and that Deloitte knew the policy contravened age discrimination law. The suit was settled through a process of mediation. Deloitte declined to comment on the particulars of the settlement, apart from saying Mr Brown will now retire.

Former SBS Journalist to Sue Network Over Alleged Bullying

A former SBS journalist has launched legal action against SBS after an independent investigation found she suffered workplace harassment. The journalist, Pallavi Jain, was hired in 2013 and made three complaints about her treatment before being dismissed in December 2019. She has now launched a general protections claim to be reinstated. An external investigation in 2016 into executive producer Kumud Merani found that she had engaged in workplace bullying and harassment against Ms Jain and breached SBS’s code of conduct. However, SBS allegedly refused to change Ms Jain’s reporting line. Medical records show this caused Ms Jain to suffer severe anxiety. A subsequent investigation by work safety authority Comcare determined Ms Jain’s mental health problems were linked to working under Ms Merani and determined SBS was liable for medical costs. Despite this, Ms Jain claims SBS continued to require her to work under Ms Merani for years. SBS ultimately terminated Ms Jain’s employment in December 2017 after determining she was unable to work with Ms Merani, which they said was a key requirement for the role. The lawsuit is being heard in the Federal Court.