What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 29 April 2019 – 5 May 2019

Sexism and Sexual Harassment Rife Within Victorian Legal Profession
According to the ‘Start with Us’ report conducted by the Women’s Legal Service Victoria (WLSV), sexism and general inequality have reached rife levels within the Victorian legal profession. In a survey of nearly 300 professionals within the legal sphere, the overwhelming consensus was that the profession remains ‘an enduring and powerful “boys’ club”’. The culture was described as one which provides fertile ground for sexual harassment and bullying. The report also found that there are high rates of discrimination against female practitioners of ‘child-bearing’ age. This is due to the belief that practitioners of this age should not be handed prestigious matters, as they might be ‘going off to have babies soon’. The most common forms of reported sexual harassment included unwanted physical contact, inappropriate comments on appearance and sexual innuendos. These findings corroborated a 2013 Law Council of Australia report, which found that around half of all female practitioner’s experience gender discrimination and one in four have experienced sexual harassment. In regard to these concerns, the Victorian Legal Services Commissioner, Fiona McLeay, said she would launch a state-wide survey to uncover the extent of sexual harassment within the legal profession. The survey is yet to commence.

Sex Discrimination Commissioner Disappointed at Companies Use of Non-Disclosure Agreements
Australia’s Sex Discrimination Commissioner, Kate Jenkins, has expressed disappointment over the corporate world’s reliance on non-disclosure agreements (NDA’s). Before the deadline for the first National Inquiry into Sexual Harassment in Australian Workplaces, only 30 companies and institutions across Australia had waived their internal non-disclosure arrangements. Waiver was an important aspect of the reporting process, as it enabled employees to make confidential submissions to the National Inquiry without fear of reprisal. However, global companies such as Deloitte, PwC, Accenture, Dentsu and Macquarie all refused to step up, citing legal reasons for their decision. Commissioner Jenkins lamented over this culture of silence, stating that ‘these companies totally could have done it (waived their NDA’s)’. ‘It really told me how much our organizations rely on those [agreements],’ she added. NDA’s have been cited as the biggest obstacle to Australia’s first nationwide attempt to ‘quantify the economic impact of workplace sexual harassment and examine the drivers of this behaviour’. ‘It is standard procedure’, Ms Jenkins said, ‘to view confidential agreements as benefiting all involved: the claimant who feared retaliation, the accused who denied the allegation and the company that wanted to protect its reputation’. However, the practice of non-disclosure agreements also contributes to an eco-system which relies on silence to protect reputation.

External Review of Vic. Hospital in Relation to Bullying Claims
An external investigation has been called into claims of workplace bullying and intimidation at Latrobe Regional Hospital in eastern Victoria. The Victorian Department of Health and Human Services (DHHS) ordered the review after an unnamed union survey found that 71 per cent staff at the Victorian hospital’s mental health unit felt intimidated and bullied at work. Nearly 40 per cent of those surveyed attributed the cultural issues to poor hospital management. A statement released by Latrobe Regional Hospital Acting Chief Executive, Don McRae, confirmed the review was to commence next week and would ‘cover the entire Latrobe Regional Hospital mental health service unit’.

Folau’s Code of Conduct Hearing Soon- Possible Argument from Both Sides
Commentators have begun speculating over the arguments Rugby Australia (RA) and Israel Folau are likely to advance in the player’s upcoming code of conduct hearing. RA will likely argue that it is entitled to terminate Folau’s employment contract for breach of clause 1.6 and 1.8 of the organisation’s code of conduct. Clause 1.6 of Folau’s contract prohibits ‘any public comment that would likely be detrimental to the best interests, image and welfare of the Game [of Rugby Union]’. Similarly, clause 1.8 of the contract sanctions actions which ‘may adversely affect or reflect on, or bring you, your team, club, Rugby Body or Rugby into disrepute or discredit’. In arguing that Mr Folau’s social media post on 10 April 2019 breached both clauses, RA will contend that it is unilaterally entitled to terminate the player’s employment. Though only speculation, legal commentators think that Folau will argue his defence under the Fair Work Act 2009 (Cth) (‘Act’). Specifically, by drawing upon S 351(1) of the Act which prohibits employers from taking adverse action against an employee on the basis of various specified attributes, including religion. Secondly, it is speculated that Folau will argue against his termination on the grounds of religious immunity pursuant to S 772(1)(f) of the Act.