What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 24 – 30 May 2021

Australia Post Senate Inquiry Report Released, Recommending that the PM Apologise to Christine Holgate

The report of the Senate Committee Inquiry into Australia Post and the ousting of Christine Holgate over Cartier watches had been published, listing 25 recommendations. Among them is a recommendation that the Australia Post Board, Shareholder Ministers and the Prime Minister apologise to Ms Holgate for denying her the legal principles of procedural fairness and natural justice in her departure from Australia Post. The Committee further recommended that the Solicitor-General investigate the legality of the instruction from Shareholder Ministers on the Australia Post Board in October 2020 that they should stand Ms Holgate aside while an investigation takes place into the purchase of the watches. The Committee found that there was significant evidence to support the assertion that Ms Holgate was put under significant distress and treated unfairly. They held that the Prime Minister’s comments in relation to Ms Holgate exposed a deeply concerning attitude marked by a lack of respect for due process or procedural fairness, and a willingness to treat people without dignity or compassion at the highest level. They felt this attitude was also taken by the Australia Post Board. The Committee concluded by saying the review being conducted by the Sex Discrimination Commissioner, Ms Kate Jenkins, is equally relevant to the case before them: ‘the committee hopes the review shines a light into the dark corners of the parliament and public sector, and leads to changes in legislation, culture and procedure.’

Safe Work Australia and eSafety Commissioner Release Fact Sheets on Online Abuse in the Workplace

Safe Work Australia and the eSafety Commissioner have released fact sheets for employers and employees about the dangers of online abuse in the workplace and measures to prevent it. The documents define online abuse as ‘behaviour that uses technology to threaten, intimidate, bully, harass or humiliate someone.’ Online abuse can come from many sources, including social media, online chat, messaging services, by telephone, email or any other technology used in the workplace. The fact sheets outline the requirements for all workplaces. First, there should be a safe physical and online working environment with systems and procedures to prevent and respond to online abuse. Workplace policy should set out how prevention and response will occur, including acceptable standards of behaviour for all employees, customers and clients. Workplaces should have access to information, training and supervision on what to do if online abuse occurs, how to report it and how workers can access support services. Employers should consult their workers and any health and safety representatives about the risks of online abuse and ways to eliminate or minimise it.

Students Take on Legal World in Fight Against Sexual Harassment

Students at the University of Sydney are designing an app to help law graduates deal with incidents of sexual harassment and bullying in the workplace. The students, from law, media, policy and computing backgrounds, have developed Confidant, a free digital platform to help anyone in the legal profession anonymously record and report incidents. A survey released in 2019 by the International Bar Association showed the rates of bullying and harassment in Australia law firms were significantly higher than elsewhere. Young lawyers are often reluctant to report incidents due to fears that their careers could be impacted by an allegation of harassment. The app intends to lower barriers to reporting and is set to be released later this year.

Deloitte Report Finds Women Doing It Tough in Pandemic

A global report conducted by Deloitte has found that 51% of women are less optimistic about their career prospects now compared to before the pandemic. Approximately 50 000 working women from over 10 countries responded to the survey, which looked at the impact of the COVID-19 pandemic on workers and the state of gender equality in the workplace. Women indicated that their stress levels have increased since the pandemic began as they have taken on more responsibility at home and in their careers. It notes that women continue to face non-inclusive behaviours without adequate support from management staff or employers. Additionally, while many employers have policies and procedures regarding discrimination, few have cultivated a culture of trust in which women feel comfortable voicing their concerns without fear of negative career impacts. The report concludes with six recommended actions that organisations can take, including creating an inclusive culture; enabling work-life balance; maintaining visible commitments by leaders to gender equality; providing fulfilling development opportunities that are accessible for women; supporting life outside of work; and rebuilding the workplace post-pandemic with gender equality in mind.

Survey Finds Young Perth Female Doctors Scared to Report Bullying or Take Maternity Leave

A survey has found that 70% of young female doctors fear for their jobs if they report bullying or harassment in the workplace. A further 40% of female doctors fear for their job security if they access maternity leave, and doctors on average are working 7 hours of overtime every fortnight. The survey, conducted by the Australian Medical Association (AMA) WA, received responses from over 950 doctors in training across Perth hospitals. AMA doctors in training co-chair Jemma Hogan said young doctors seeking promotions or competing for sought-after training positions and specialisations were less inclined to report a superior for fear of hurting their own job prospects. Dr Hogan said more female leaders at hospitals would improve reporting rates of bullying and harassment. The survey further reveals widespread problems with culture and morale across Perth hospitals, reflecting concerns from staff in relation to resourcing issues.

Defence Minister Bans Staff from Wearing Rainbow Outfits for LGBT+ Rights Because of the ‘Woke Agenda’

Defence Minister, Peter Dutton, has banned members of the Defence Department and serving military personnel from wearing clothes bearing the LGBT+ Pride Flag. It comes after military personnel had been encouraged by the Department to wear rainbow clothing at a morning tea to mark the International Day Against Homophobia, Biphobia, Interphobia and Transphobia on 17 May. In doing so, the Department sought to show ‘support for our lesbian, gay, bisexual, transgender and intersex colleagues, friends and family by standing against prejudice and discrimination, and demonstrating inclusion.’ Mr Dutton ordered Defence Force Chief Angus Campbell and Defence Secretary Greg Moriarty to wind back the memo. A new directive issued by department officials stated ‘defence represents the people of Australia and must at all times be focused on our primary mission to protect Australia’s national interests. We must not be putting effort into matters that distract from this.’ The Deputy National President of the Community and Public Service Union, Brooke Muscat, said ‘if having a morning tea for reconciliation week, international women’s day or international day against homophobia is stopping our national security efforts, then we have a real problem.’

New Report Reveals Aboriginal and Torres Strait Islander People are Battling ‘Major Discrimination’ in the Workplace

A new study conducted by Monash University on behalf of Inclusive Australia has found the number of Aboriginal and Torres Strait Islander people who experienced a major form of discrimination spiked between 2018 and 2019. In 2018, 29% of First Nations people reported experiencing a form of major discrimination, which jumped to 52% in 2019 and 50% in 2020. Major forms of discrimination include serious unjust treatment such as being unfairly denied a job or being discouraged from continuing education. Young people had also experienced an increase in being unfairly fired from a job or denied promotion, which increased from 12.2% to 18.2% from 2019 to 2020. The study also analysed the impacts of COVID-19 on wellbeing, with 25.3% respondents stating that working from home positively impacted their wellbeing, while only 8.5% felt it had harmed their wellbeing.

NSW Barrister Reprimanded for Sexually Harassing Junior Solicitor

Members of the NCAT have found barrister David Raphael guilty of unsatisfactory professional misconduct and have ruled that he undergo eight hours of education and counselling. In 2017, Mr Raphael approached a junior solicitor who was visibly distraught and remarked in reference to her wedding ring ‘won’t your husband get jealous because we are spending so much time together? He will think something is going on.’ As the discussion between the legal team colleagues progressed, Ms X began crying. Mr Raphael placed his arms on the woman’s shoulders, bent forward and kissed the top of her head, remarking ‘don’t worry you poor thing.’ The NCAT found that the behaviour constituted sexual harassment under section 22A of the Anti-Discrimination Act (NSW), this being ‘unwelcome conduct of a sexual nature, which a reasonable person would anticipate could offend, humiliate or intimidate another.’ The NCAT members referred to the power imbalance between the Ms X’s relative youth and inexperience against Mr Raphael’s experience. It was noted that Mr Raphael’s advanced age did not detract from how his behaviour would be viewed. The NCAT members outlined that while Raphael had admitted that he had breached certain standards, he had only concluded that he had acted inappropriately quite late in the day, as for months following the incident, he continued to label his behaviour as ‘innocent and innocuous.’ In determining how to reprimand the barrister, now in his mid-80s, the members noted the reputation of the profession was at stake. They stated that Mr Raphael was ignorant to the impact of his behaviour, and this was of considerable concern given the problem of sexual harassment in the profession has gained widespread media attention. The barrister had submitted he was willing to undertake one hour’s training on behaviour alteration, but the NCAT did not believe this would change the habits of a lifetime. The NSW Bar Association recommended that the barrister undertake a combination of both counselling and education for a period of at least eight hours, which should be completed within a given timeframe and paid for by Mr Raphael.

Women Come Forward With Complaints of Bullying, Harassment at AFL House

A report by The Australian has revealed that at least 14 employees, including one man, have left the AFL House, AFL state bodies and AFL clubs after complaining about bullying, poor behaviour or harassment in the past nine years, with 11 signing confidentiality agreements. Eight cases involved payouts totalling more than $760,000, with individual payments ranging from $17,000 to more than $200,000. Four women said they had been left feeling ‘suicidal’ after traumatic experiences working in the AFL. Alongside the investigation by The Australian, journalist Michael Warner’s new book, The Boy’s Club, reveals the claims of current and former AFL staff about what they described as an ‘unsafe’ workplace environment. In a statement, AFL Chief Executive, Gillon McLachlan said that the organisation did not tolerate bullying or harassment and worked hard to create a respectful and safe workplace.

Israel Folau Takes Legal Action on the Grounds of Discrimination

Israel Folau is taking legal action against the Queensland Rugby League (QRL) on the grounds of discrimination following the sporting body’s decision not to register Folau for the Southport Tigers. The QRL did so on the basis that it had not received confirmation he had been released from his existing playing contract with French club, the Catalan Dragons. Folau’s lawyers, Sam Iskander, said his client had been ‘denied the opportunity to practice his profession’, claiming that his application for registration had been treated differently than anyone else who had sought registration with the Southport Tigers and that he was a victim of discrimination. Folau has not played in Australia since the termination of his Rugby Australia Contract in 2018, after he refused to take down a controversial social media post in which he said ‘hell awaits’ gay people.

Music Industry Reveals Initial Outcomes of #MeToo Meeting

The Australian music industry has held an initial meeting to address sexual harm, harassment and systemic discrimination within its ranks. The temporary working group, comprised of industry representatives, and survivor Jaguar Jonze, will navigate the initial steps of meaningful consultation around cultural change in the Australian music industry. The immediate actions as a result of the meeting are to engage independent experts/facilitators, establish a national consultation strategy and share the recommendations and rollout process.

Fair Work Commission Upholds Workplace Bullying Dismissal

The Fair Work Commission has upheld the dismissal of a senior manager at Calvary Public Hospital following workplace bullying and harassment allegations. In April 2019, the applicant, then director of medical imaging, was issued with a notice of investigation after two allegations were made by a wardsman and a nurse regarding his behaviour. In the first allegation, the applicant repeatedly blamed the wardsman for failing to check a patient’s ID before a procedure, which was the applicant’s responsibility. In the second, the applicant had intimidated the wardsman and nurse by staring at and questioning them about the first complaint. An external investigation confirmed the allegations, finding they were contrary to the hospital’s code of conduct and the applicant’s employment conditions. He was therefore dismissed. The applicant contended that there was no valid reason for his dismissal and that the external investigation was first-hand hearsay and therefore inadmissible. The Commission dismissed this argument, as the investigation was conducted in an appropriate manner, on reasonable grounds and the applicant was provided with reasonable opportunity to respond. The applicant further asserted that the dismissal was disproportionate to the gravity of the misconduct. The respondent, in rejecting this, cited the zero-tolerance approach to bullying and submitted that the behaviour was unwarranted given his senior leadership role. The Commission agreed with the respondent, describing the behaviour as ‘highly inappropriate’ and finding that a reasonable person would consider it ‘humiliating and degrading’. The dismissal was not unfair.

Foster Report Submitted to Government

Senior public servant, Stephanie Foster, has handed her report to the Government following her review into processes for responding to serious incidents at Parliament House, including sexual assault. Ms Foster was tasked with the review after allegations emerged that former ministerial staffer, Brittany Higgins, was sexually assaulted in Parliament House in 2019. Prime Minister Scott Morrison said that Ms Foster’s recommendations aimed to ensure processes for responding to serious incidents are independent, empower survivors and provide survivors with adequate support. Among the recommendations included the implementation of a face-to-face education program to help managers and staff understand their obligations towards a safe and respectful workplace, and to recognise and respond appropriately to serious incidents or patterns of behaviour in the workplace. It further called for the development of an independent, confidential complaints mechanism for serious incidents, and the establishment of a 24/7 confidential and trauma-informed trauma support line for all staff and Parliamentarians. The report will now be taken to Cabinet, where the Government will respond to the recommendations and seek to engage with all parties and parliament