What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 31 May – 6 June

Foster Review Finds Incidents Reporting Systems Deficient

The Foster Review into parliamentary workplaces has found its processes are not designed or able to appropriately deal with bullying, assault or sexual assault. The review, conducted by deputy secretary of the Department of Prime Minister and Cabinet, Stephanie Foster, found 76 complaints across four years were made by employees or members of Parliament. Of the 76 complaints made by these workers, 38 related to the conduct of parliamentarians. Fifty-seven of the complaints had been processed to informal actions, such as facilitated discussions, while seven were referred to external investigations. The report found five of the complaints related to sexual harassment. The serious incident systems (encompassing assault, sexual assault, sexual harassment and systemic bullying or harassment) were deficient in three areas. The most significant issue is staffers do not have access to independent, trauma-informed services and response mechanisms. The introduction of a 24-hour support line serves to narrow this gap. Another critical area is the formation of an independent complaints department capable of holding parliamentarians to account. Finally, a face-to-face education program is required, addressing serious incidents in the workplace tailored to parliamentarians and their staff.

Breastfeeding Ban Scrapped in WA Parliament

Michelle Roberts, the first female speaker of the Legislative Assembly, this week announced changes to the standing orders of the Legislative Assembly to reverse the breastfeeding ban. It is understood the Legislative Council will also adopt the same policy. Ms Roberts said ‘the Legislative Assembly, like other workplaces, should make common sense adjustments to support women to be able to breastfeed where possible, including in the chamber.’ Her announcement attracted applause from MPs.

Progress on Federal Parliament Respect at Work Report

Federal MPs will have the opportunity to see a report into a new parliamentary complaints process following a cabinet discussion. Prime Minister Scott Morrison hopes to share the report with coalition MPs later this week before Stephanie Foster, departmental deputy secretary, leads consultation with all parties and independents. A Senate Committee has heard three legislative proposals are being developed, including a stop sexual harassment order, equivalent to a stop bullying order under the Fair Work Commission’s jurisdiction. The second proposal will clarify conduct amounting to a sackable offence under the Fair Work Act. The final change will confirm that sexual harassment is a serious misconduct matter which can lead to termination without notice. The Respect at Work Council will lead work to develop training and provide information on making complaints for employers and workers.

Christian Porter Drops Defamation Law Suit Over Rape Claim

Christian Porter has dropped his defamation case against reporter Louise Milligan and the ABC. The parties said that the case had been settled under confidential terms without damages being paid. In a statement, the ABC said it regretted that some readers misinterpreted its report as an accusation that Mr Porter was guilty. Mr Porter intends on running for re-election at the general election next year.

Freedom of Information Documents Reveal Internal Complaints in SA Labor and Crossbench Electoral Offices

Documents released under Freedom of Information have revealed a dozen internal complaints relating to staff grievances within the electoral offices of South Australian state labor and crossbench MPs since the 2018 state election. The behaviour of SA MPs has been in the spotlight since a report by the state’s Equal Opportunity Commissioner revealed instances of sexual harassment and bullying in the South Australian parliament. The documents, from the Department of Treasury and Finance, reveal Jayne Stinson, the Member for Badcoe, had received a formal complaint by a trainee, and noted that the office had a higher than expected turnover of staff. She stood down from the Opposition frontbench earlier this year, citing personal issues. Opposition leader, Peter Malinauskas, said all grievances are taken seriously.

Bullying Probe within Victoria COVID-19 Policy, Strategy and Information Branch

A Victorian government cabinet adviser has been investigated for allegedly bullying staff at the COVID-19 Policy, Strategy and Information Branch. The unit was charged with advising the public about lockdown rules and what impact they had on professional and personal activities. They also provided advice to the government on legal issues surrounding the restrictions. The probe was launched in March 2021 after multiple complaints were made to health chiefs about breaches of the code of conduct. Among the allegations from staff were that the senior bureaucrat boasted about making a female colleague cry, threatened to throw a laptop through a window and ‘f..king kill somebody’ and threatened to ‘f..king fire somebody.’ The Department of Health said it took all complaints seriously and staff could have confidence to report inappropriate behaviour.

Disclosing Details of Workplace Investigation to Spouse Not a Valid Reason for Dismissal

The recent Fair Work Commission case of Goss v Health Generation has considered the extent to which a direction of confidentiality during a workplace investigation can be reasonable. In July 2020, Ms Goss raised allegations of sexual harassment, workplace bullying and unpaid entitlements to Health Generation. She was invited to participate an interview and bring along a lawyer. She was directed not to disclose information about the investigation to anyone other than her lawyer. During the interview, Ms Goss was made aware of comments made by a colleague and a witness in the investigation concerning her allegations. She disclosed these comments to her husband, who reacted by sending abusive text messages to that colleague. These were reported to Health Generation, who decided to terminate Ms Goss’s employment on the basis she had failed to comply with the confidentiality direction. Ms Goss provided evidence, supported by her psychologist, that given her emotional distress and depression, it was necessary for her to confide in her husband. Deputy President Clancy condemned the text messages sent by the husband but was not satisfied that the direction to maintain confidentiality was reasonable. He noted it was unreasonable and unrealistic to insist a person only consult with their lawyer, but not a person upon who they rely for advice and emotional support, such as a spouse or de-facto. There was no valid reason for dismissal and it was therefore unfair.

Transgender Pilot Wins Sexual Harassment Case

A transgender woman who was a senior flight instructor at Gympie Airport in regional Queensland has won a case against Blair Rowan, a wealthy property investor and aircraft owner, after alleging sexual harassment, victimisation and vilification under the Anti-Discrimination Act (Queensland). Ms Beck trained pilots at Gympie airport after qualifying as a senior flight instructor in 2004, the same year she transitioned from male to female. In mid-2015 Ms Beck was shown a serious of emails sent to male members of the club by Mr Rowan, calling her a man ‘with male parts’ and asked why she should not be called ‘he.’ Mr Rowan objects to Ms Beck’s presence based on his ‘religion and personal values’, calling her ‘creepy.’ In another email, he said ‘let’s leave emotion out of this and burn the witch.’ The Queensland Civil and Administrative Tribunal ruled in February 2018 that two of Mr Rowans emails were sexual harassment. While the ‘burn the witch’ email and others were offensive they did not amount to victimisation and vilification. The tribunal found Mr Rowan victimised Ms Beck with a ‘made up’ sexual harassment complaint that made allegations about her conduct that ‘could not be believed.’ Mr Rowan lost his appeal in February this year and launched a further appeal in the Queensland Court of Appeal, set to occur in August.

Compulsory COVID-19 Vaccinations at Work Could Face Legal Issues

As employers begin to consider introducing ‘no jab, no job’ policies for staff who refuse a COVID-19 vaccine, lawyers are warning there could be legal challenges to compulsory COVID-19 vaccinations at work. It comes as aged care workers may soon face compulsory vaccinations after federal and state governments reached an in-principle agreement on the issue, pending further advice from medical experts. The Fair Work Commission recently upheld the sacking of two workers in aged care and childcare who refused a flu vaccine. However, lawyers have warned that this cannot be extrapolated to all workplaces, as they could risk breaching unfair dismissal and anti-discrimination laws. The Australian Council of Trade Unions secretary, Sally McManus, said vaccination mandates should be made by medical experts, not by individual employers.