What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 31 August 2020 – 6 September 2020

Workplace Sexual Harassment is a Health and Safety Issue

In light of the Boe Pahari scandal, commentators have come out to oppose Australia’s current sexual harassment policies. The Australian Human Rights Commission (AHRC) in its 2019 National Inquiry into Sexual Harassment found that Australia’s policies are reactive. Sexual harassment policies in Australia focus on complaint mechanisms when an incident has already occurred. The AHRC, in its inquiry, was cognisant ‘of the need to shift from the current reactive, complaints-based approach, to one which requires positive actions from employers and a focus on prevention.’ The AHRC said ‘current approaches to preventing and responding to sexual harassment in workplaces are inadequate.’ Following Boe Pahari’s demotion at AMP, it has been suggested that sexual harassment be treated as a work health and safety (WHS) issue. Interestingly a 2-page summary of the 2017 inquiry into former AMP executive Boe Pahari’s behaviour never used the words ‘sexual harassment.’ The summary details all 9 allegations made against Mr Pahari; however, the British lawyer who led the inquiry did not consider Mr Pahari’s actions either sexual harassment or offensive conduct. While the summary did find 2 instances of ‘moderate’ or ‘minor harassment’, they were not referred to as sexual in nature.

WHS focuses on an employer’s ‘positive duty’ to keep workers safe. In doing so, the law may be able to pre-emptively prevent instances of sexual harassment before they occur.

Allegation of Age and Gender Discrimination by ABC

The Media Entertainment and Arts Alliance (MEAA) – an advocate body for workers in the entertainment industry – has recently filed a notice of dispute to the Fair Work Commission against the Australian Broadcasting Corporation (ABC). The MEAA claimed that the ABC was underpaying employees and engaging in discriminatory redundancy decisions. The claims included an allegation that senior women at the ABC were disproportionately targeted for redundancy. The ABC, has denied the claim saying, ‘In identifying redundant roles, we did lose a number of senior positions, which were inevitably looked at in the context of identifying cost savings, as well as workforce planning to ensure we had the right mix of senior and junior positions to fulfil the needs of the organisation,’ the statement continued.

Federal Court Judge Found to Have Acted in a Demeaning Way to QC in Court Hearing

The Full Federal Court of Australia has found that Federal Circuit Judge Guy Andrew bullied, insulted and demeaned a Queen’s Counsel and solicitor last month. During the initial hearing of a family law matter, Judge Andrew made remarks such as ‘Oh, God’, ‘rubbish’, ‘this is pathetic’ and ‘that’s garbage’ toward the appearing counsel. On appeal of the decision, the Full Federal Court found that Judge Andrew engaged in ‘hectoring’ and ‘demeaning’ conduct. The three-judge Full Court concluded there was ‘no basis’ for Judge Andrew’s ‘cruel, insulting, humiliating and rude’ interjections. The Full Federal Court then ordered a re-trial of the decision and confirmed that ‘Judge Andrew has been temporarily transferred to the Brisbane Registry and will be receiving counselling, mentoring and his sittings will be monitored.’ Further, Judge Andrew will also receive additional judicial training focused on appropriate conduct and court etiquette.

Diversity and Recruitment Report Shows Diverse People Wont Speak Up

A new report conducted by Indeed has found that approximately 20% of LGBTQI+ Australians experience unequal treatment at work. The Diversity and Inclusion in the Workplace report found that a further 30% do not feel able to speak openly in their workplace for fear of criticism. Out of the 1,512 participants, 61% hide their sexual orientation at work, 14% hide their gender and 14% their disability. Jay Munro, Head of Career Insights at Indeed, said that ‘[i]t is one point for a workplace to be inclusive as a whole, but it can be the immediate day-to-day team or a few key people amplifying the ingrained feeling that being out and open at work carries risk.’ Munro said that it is important for companies to incorporate diversity and inclusion at recruitment stages. ‘Smart organisations are not just looking for new inclusion initiatives for internal culture but are extending their policies and initiatives to directly attract new talent and find greater visibility with job searchers as a diverse and inclusive workplace,’ Munro said.

Discrimination Complaint Lodged Against Senator Chandler Over Comment About Women’s Toilets

An anti-discrimination complaint has been lodged against Tasmanian Senator Claire Chandler concerning an opinion piece she published on free speech. In the piece, Senator Chandler said that women’s sports, toilets and changing rooms should only be accessed by people of the female sex. Senator Chandler claims the complaint against her signals that free speech is under threat. ‘I received a letter from the Tasmanian Equal Opportunity Commission, summoning me to attend a conciliation conference to answer for my statements on free speech and sex-based rights,’ she said. Senator Chandler said the complainant was free to hold their own views but that plenty of Tasmanians support her. Equality Tasmania spokesperson Dr Charlie Burton said that free speech carries with it a responsibility to not harm others. She explained that ‘[t]he Australian High Court has found free speech has to be balanced with other rights, and the Tasmanian Supreme Court has found that our state law against intimidating and humiliating language does not violate free speech.’ Dr Burton invited Senator Chandler to meet young transgender Tasmanians and their families to help her understand their lives and the impact of discrimination.

QBE CEO Fired After Female Employee Complained of Unwanted Messages

QBE chief executive Pat Regan has been fired after a female employee complained about receiving ‘unwanted messages’ from him. However, instead of calling out the conduct as sexual harassment, the allegations were referred to as an issue of ‘workplace communications.’ Little has currently been disclosed about the incident. However, the company’s clever use of language comes just weeks after former Adelaide University vice-chancellor Peter Rathjen stepped down due to ‘ill health.’ This is despite the Independent Commissioner Against Corruption (ICAC) finding Rathjen’s conduct to be ‘sexual in nature.’ Interestingly, Peter Rathjen, the disgraced former vice-chancellor of the University of Adelaide, received a pay rise after previous inquiries into his behaviour. An inquiry was first conducted following allegations of serious sexual misconduct when Rathjen was Dean of Science at the University of Melbourne. And despite being investigated by and receiving a warning from the University of Adelaide in 2019, he received a pay rise of 3.5%. Meaning, his salary increased to $1.1 million in 2019. This was despite the university’s profit falling by approximately 3.5%.

Lisa Heap, Adjunct professor and lawyer Australian Catholic University remarked that recent events show how corporations use delicate language to protect their reputations and downplay the seriousness of allegations.

Male Champions of Change Agree to Recommendations to Treat Sexual Harassment as a Safety Issue

All 260 members of the Male Champions of Change organisation have signed a new guidance report. Among many recommendations, the report calls for sexual harassment to be treated as a workplace health and safety (WHS) issue and for organisations to limit the use of non-disclosure agreements. The report also recommended that CEOs be financially penalised where sexual harassment cases are not resolved promptly. A copy of the report is set for release in mid-September.

30% Qld Apprentices Experienced Suicidal Thoughts Related to Bullying and Sexual Harassment

A new report from Griffith University has found that 30% of Queensland apprentices reported experiencing suicidal thoughts as a result of bullying and sexual harassment.