What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 31 December 2018 – 6 January 2019

Criticism of AMA’s Code of Conduct Reform
The Australian Medical Board’s recent proposals to reform Codes of Conduct has come under sharp criticism for failing to emphasise advocacy. The Board outlined its proposals in a consultation paper published six months ago. In response to concerns over inappropriate workplace behaviour in the sector, the Board sought to institute a codified stance against ‘discrimination, bullying and sexual harassment in the medical profession or in healthcare’. However, over 700 submissions in response to the review have only now just been released. In response to the proposals, the Royal Australian College of General Practitioners criticised the framework for ‘failing to acknowledge abuse of power differentials as the main cause of harassment and bullying’. The Australian Commission of Safety and Quality in Health Care echoed these criticisms, in urging the Board to advocate for cultural change, and encourage ‘individuals to actively promote workplaces free from such behaviours’. Ian Kerridge, a practising specialist and academic at the University of Sydney, states that the proposals are problematic in not “requiring doctors to advocate”. Kerridge wrote that the Board’s draft includes advice on ‘doing or saying something’ about discrimination, but stops short of encouraging -advocacy.

Sexual Harassment Claim Dismissed as Accidental Contact
The ACT Civil and Administrative Tribunal has dismissed an ACT Government contractor’s claim that she was sexually harassed by a fellow employee. The allegations made by the complainant included that two weeks into her placement at Manpower Services Australia, a co-worker brushed his crotch into her elbow and breathed on her neck while instructing her on the computer. The complainant also alleged that the male co-worker sat on her lap as well as pretending to trip and fall in an attempt to kiss her. The defendant denied allegations of any wrong-doing and stated that any instance of physical contact was not deliberate. In her decision, a senior member of the ACT Tribunal, Heidi Robinson, found that although the allegations were not fabricated, they were ‘clearly not’ sexual in nature. Ms Robinson was ‘satisfied that each interaction was accidental and typical of the kind of interactions that happen in a workplace’. She continues that though the complainant was ‘disconcerted by the incidents’, ‘that alone does not colour them as sexual in nature’. The senior member found that information regarding the co-worker referring to himself as a ‘perve’ on a Facebook post was not relevant to the case. The complainant also claimed, alongside her sexual harassment allegations, that she was a victim of age-based discrimination. In dismissing both applications, Ms Robinson said that there was ‘simply nothing’ to suggest that was the case.

BHP Employee Troublesome But Not Grounds for Dismissal
The Fair Work Commission has ordered BHP Minerals Australia to reinstate a former employee who was dismissed after having refused instructions to train a contractor at the Goonyella mine in Queensland. Gregory Macklin was found by Fair Work Commissioner, Jennifer Hunt, to have been unlawfully dismissed last June. The result of the order was that Macklin will be restored to his $151,000 salary position and be compensated for losses to the tune of $44,961. Though the BHP employee of 38 years was troublesome and resistant to institutionalised change, the unfair dismissal reflected a failure in BHP’s capacity to appropriately deal with challenging workers. While Commissioner Hunter accepted that ‘over very recent years Mr Macklin had behaved poorly in specific circumstances’, this did not invariably warrant dismissal. Commentators have remarked that the battle between Macklin and BHP illustrated just how tough it has been for BHP Minerals Australia boss Mike Henry to elevate the cultural landscape.

NSW Law Firm Employs 94% Female Solicitors
A NSW law practice is leading the way in the fight for gender equality in the workplace. Managing Director of Coutts Solicitors, Adriana Care, told ABC that 33 out of the 35 solicitors employed at her firm are female. Having just celebrated 100 years of women being able to practice in NSW, Ms Care said that she’s proud of what her firm has evolved in to. Kelly Stares, a Solicitor at Coutts, said that she has experienced workplace bullying from male co-workers in the past, and was troubled by International Bar Association Statistics which revealed that 37% of Australia’s legal professional has experienced sexual harassment. Justice Ruth McColl states that getting more female barristers and senior counsel briefed to appear in the higher courts is essential to correct the gender imbalance and associated disparaging experiences.