What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 21 January 2019 – 27 January 2019

Sexual Harassment Inquiry Hampered by Non-Disclosure Agreements
Non-disclosure agreements have made it difficult for the Australian Human Right Commission (AHRC) to conduct their National Inquiry into workplace sexual harassment. The Inquiry commenced last June after the AHRC released their fourth survey. The survey revealed that 39% of women had experienced sexual harassment in the workplace. Following the launch of the National Inquiry, Sex Discrimination Commissioner, Kate Jenkins, called upon 120 Australian companies to temporarily waive non-disclosure agreement. By doing so, employees would be able to make confidential submissions to the National Inquiry without fear of adverse consequences. However, only 19 out of the 120 organisations have agreed to do so. This has posed a big challenge in obtaining accurate results, as victims have been fearful of speaking up. Minister for Women, Kelly O’Dwyer, has criticised the use of non-disclosure agreements among workplaces and said that ‘[it] prevents us from addressing issues of sexual harassment in the workplace’.

Bullying Complained of Leads to Victimisation
A study conducted in Australia and New Zealand has found that workplace bullying is the form of misconduct that attracts the highest rates of whistle-blowing. The report, co-authored at Griffith University and Victoria University, surveyed just under 18,000 employees across the two countries. The publication found that outcomes were generally negative across all categories of whistleblowing – with over 42% facing direct employment repercussions as a result of speaking up. An interesting finding of the report was that 56% of those who spoke up experienced workplace harassment after doing so. This finding was regardless of whether the initial report involved allegations of bullying or more white-collar categories of whistleblowing, such as corruption or fraud.

Age Discrimination Commissioner Says Age Discrimination is Prevalent in Workplaces
Age Discrimination Commissioner, Kay Patterson, has spoken out against claims that workplace ‘ageism’ in Australia has been exaggerated. Ms Patterson said that research, the Australian Human Right Commission’s data and the lived experiences of elderly people across Australia challenge that idea. In refuting the claim, Ms Patterson cited the AHRC’s 2015 prevalence survey, which found that 27% of people aged over 50 experienced age discrimination at work. She further cited the 2016 Willingness to Work study, in which it was found that underlying assumptions and stereotypes about elderly workers contribute to discriminatory practices. She cemented her argument in saying that employment concerns account for 60% of all age-related claims received by the AHRC. In closing her statement, Kay Patterson said that age discrimination is prevalent, and that there is still a lot of work to be done in order to achieve equality for elderly people in the workplace.

Court Holds That Person Requested ‘Unreasonable’ Accommodations in Relation to his Disability
The Federal Circuit Court (in the case of Kristjansson v State of Queensland [2018] FCCA 3894) has dismissed a workplace discrimination claim on the basis that the employee’s requests were too ‘unreasonable’. The applicant, Mr Kristjansson, was seeking work placement through the Queensland Department of Health. During the application process, he provided a list of requirements. Among those were that he had to be provided with a stand-up desk, have all instructions presented to him in writing and be assigned an ‘on-call’ support person. When the Department of Health couldn’t find him a suitable placement tailoring to all his requirements, the applicant filed a claim to the Australian Human Rights Commission and later the Federal Circuit Court. While Judge Vasta, of the Federal Circuit Court, found that the applicant had a disability, his Honour found that he had not been discriminated against on these grounds. In his judgment, Judge Vasta highlighted the importance of giving rational consideration when presenting workplace requests.