Over the past week, there have been numerous media reports about the mishandling of sexual harassment and toxic workplace complaints and investigations, alleged cover-ups of senior executive misconduct and unsatisfactory complaint handling within organisations.

This might seem relatively surprising given changing community and business standards, not to mention the recent legislative reforms that place a positive duty on businesses to eliminate, as far as possible, various unlawful behaviours relating to sexual conduct in the workplace or in connection to work. 

If you speak to business leaders, seasoned HR professionals and people managers, they will usually respond by declaring that their organisation has addressed the positive duty and has robust systems for handling sexual harassment and toxic workplace behaviour.

However, this response may be analogous to when some employers previously proclaimed they did not have issues with underpayments of employee wages, only to find out some time later that they had been underpaying employees over many years, albeit, in many cases, unintentionally. 

So, what’s missing? Why does it seem organisations are still getting it wrong?

The Australian Human Rights Commission published guidelines in August 2023 that included practical examples of what employers should proactively be doing to comply with their positive duty to eliminate unlawful sexual behaviour in the workplace. The 112-page guideline makes it clear that it’s simply not enough for organisations to undergo a box-ticking exercise.

The guidelines comprehensively indicate that companies with strong culture and governance can effectively prevent and respond to workplace misconduct by:

• Having clear complaint handling procedures that are well-known within the organisation, so employees feel safe to report unsatisfactory workplace behaviour at an early stage.
• Creating support mechanisms for workers to feel safe and assisted by the organisation in raising issues about unsatisfactory workplace behaviour. For example, this could look like internal support through nominating workers or asking for volunteers to act as contact officers, and creating peer support networks and ensuring they’re trained in receiving disclosures of relevant unlawful conduct and harm. Organisations could also engage external specialist support through work-funded Employee Assistance Programs.   
• Ensuring investigations into allegations of unsatisfactory workplace conduct are undertaken in a fair and consistent manner to provide workers with confidence that their organisation is committed to creating a safe and inclusive work environment.

Below, we provide an overview of what boards, senior managers, HR, legal and risk professionals should be doing at a minimum and offer best-practice tips in relation to complaint handling and investigations to ensure the safety of their workers.  

This should help employers and HR avoid any reputational damage that their organisations may face when these issues are not managed to the high standards now expected by both workers, the government and the broader community. 

Best-practice complaint handling    

While best practice will look different in different businesses, depending on organisation size, operations (e.g. remote or international), HR and employee relations capacity, etc., employers should generally be implementing the following best-practice steps to ensure complaints are handled appropriately:

1. Consult with workers about existing and proposed complaint handling measures within the organisation.    

As persons conducting a business or undertaking, employers must, so far as reasonably practicable, consult with workers (which includes employees, contractors, volunteers and anyone else who carries out work for the business) who are or are likely to be directly affected by a health and safety matter.

Inevitably, many complaints about unsatisfactory workplace behaviour relate to safety matters, including psychosocial hazards.  

In engaging and consulting with workers about complaint handling measures and mechanisms, organisations are able to obtain real and practical knowledge and experience to make improved and informed decisions about how to handle complaints in a safe manner.

2. Implement a workplace policy that sets out the organisation’s complaint handling procedure

The policy should set out in clear, concise and plain language for workers to understand:

1. The who, what, where, why and how of making a complaint or raising a concern (including various options based on the level and rank of the person being complained about and the information required).   
2. That the process will be undertaken as confidentially as possible, explaining that information may need to be disclosed on a need-to-know basis.   
3. That their complaints or concerns will be taken seriously.   
4. What immediate action will be taken by the organisation after a complaint or concern is raised, including expected time frames.   
5. Options available to the worker to ensure their safety and wellbeing (e.g. if required, temporary adjustments to reporting lines, access to leave, etc.).   
6. Informal and formal options available to resolve the complaint where appropriate.   
7. An outline of possible consequences if misconduct in breach of an organisation’s policy or law is found to have occurred    
8. Where workers can provide feedback about the policy.

3. Implement a bystander policy

This policy should set out the organisation’s expectations for workers to report any inappropriate conduct witnessed as a bystander.

4. Regular and continuous communication

Organisations should regularly communicate the existence of relevant policies and procedures to employees and where they are located.

This should not be an exercise limited to the induction and starter packs for new workers, but part of a wider HR strategy to ensure workers are embedded with knowledge about the organisation’s expectations and the rules that govern the workplace.

5. Access to information

The complaint handling policy and procedures should be easily accessible and publicised to all workers (for example, located on the organisation’s intranet, on staff notice boards and provided as part of the welcome pack for new workers). The regular communication, mentioned above, should capture this point.

6. Appropriate training

Provide tailored training to all workers, and separate training specifically designed for managers and those who have people management responsibilities, to ensure they:

1. Understand the obligations they have in the complaint handling procedure.  
2. Equip them with the knowledge and information to discharge their obligations    
3. Know how to respond and/or escalate the matter appropriately, by testing them on the training content.

The training for everyone may be conducted by way of an interactive learning module or workshop that simulates different scenarios and guides decision-making depending on the type and severity of the allegations, and tests employees on the content covered.

Organisations may also like to consider offering mental health first aid training to equip front-line managers with recognising and responding to workers experiencing a mental health crisis arising from workplace conduct experienced or witnessed by workers.

“Communication is key throughout the investigation process to limit prolonged uncertainty and anxiety for all parties involved.”

Best-practice investigations    

Once a complaint or concern has been reported, and the organisation is aware of an issue, appropriate action must be taken by the organisation within a reasonable timeframe, and taking into account its available resources.

This is because there is a potential hazard that the organisation has been made aware of and needs to address promptly. Failing to act swiftly is the equivalent of leaving hazards such as a puddle in the middle of a shopfront, or a loose screw in a piece of machinery, meaning it often becomes too late to act.    

Appropriate action may take the form of a factual investigation to determine whether the allegations are more likely to have occurred than not, on the balance of probabilities, and should involve at least the following steps:

1. Undertake a risk assessment and determine whether any workplace adjustments are required to protect the safety of the complainant, and ensure confidentiality      

Depending on the nature of the allegations and proximity of working relationship between the complainant and the alleged perpetrator, workplace adjustments may need to be made to ensure everyone’s safety while the investigation is being undertaken.

For example, temporarily changing reporting lines, directing one of the parties to work from home or, in serious matters, suspending the alleged perpetrator from work until further notice.

2. Determine whether the investigation will be undertaken internally or by an external/independent party, and select an appropriate investigator

Subject to the seriousness of the allegations, it may be appropriate to conduct the investigation internally, by way of desktop review, etc; or seek legal advice; and/or engage an external third party to conduct the investigation.

Whatever way the matter is to be investigated, the investigator must be impartial, which means the investigator should not have any conflict of interest (either actual or perceived) – such as a former manager or close colleague – with the parties involved in the complaint; and should ideally be trained with undertaking investigations.

3. Communicate next steps clearly      

Communicate appropriately, and as applicable to all relevant parties, that a complaint has been made, who will be undertaking the investigation, what the investigation process will involve – including estimated timeframes – and what some of the potential outcomes could involve. 

This may also involve strategic communications with relevant teams to ensure confidentiality is maintained and the organisation’s commitment to a safe and inclusive workplace environment is highlighted. 

Communication is key throughout the investigation process to limit prolonged uncertainty and anxiety for all parties involved.

It provides assurance to complainants that their complaint is being treated seriously and managed appropriately, and keeps alleged perpetrators abreast of when findings are expected to be made.

4. Review the organisation’s policies and procedures with respect to complaint handling and investigations      

If the organisation has committed to a policy or procedure in relation to how complaint handling and investigations will be undertaken, these must be complied with, as all employees will expect that the process they have been notified about will be followed.

5. Conduct fair and objective interviews with the complainant, all relevant witnesses, and the alleged perpetrator

Give all parties the benefit of the doubt. Everyone involved should be treated in a fair and uniform way. Questions should be prepared in advance so interviewees will be able to tell their side of the story fully. Leading questions such as, “You knew what you were doing was wrong, didn’t you?”, should be avoided as theymmay lead to a biased response.

Where additional witnesses are identified during interviews, care must be taken to determine whether or not they should be spoken to, to ensure all available evidence is collected before any factual findings are made.

6. Record keeping

Keep a clear and comprehensive record of all steps taken, including keeping all interview transcripts, notes and evidence collected.

7. Investigation report

In many instances, the investigator should prepare a report at the conclusion of their enquiries. The report must contain the findings of fact and, if asked by the organisation, make recommendations and/or a determination.

If the investigation has been conducted in order for the organisation to obtain legal advice, the report should only be provided to the ultimate decision-maker(s) and not to any other parties.

8. Findings

The organisation should, after receiving the investigator’s findings, communicate those findings and any decision appropriately to all the parties involved.

The ultimate decision maker should ensure the final decision is proportionate to the findings made. Where adverse findings and outcomes are proposed, the organisation should provide the alleged perpetrator with the opportunity to respond before a final decision is made.

 This ensures the alleged perpetrator is given a procedurally fair process to provide any additional information that may not have been disclosed and could therefore impact the findings and outcome proposed.

What should HR do next? 

It’s clear that workers and the wider community are increasingly placing a higher standard on businesses and organisations to provide a safe and inclusive work environment. 

Accordingly, it’s more important than ever that organisations review their governance structure to ensure they have an effective ‘prevention and response plan’.

Such plans should include adequate complaint handling systems and ensuring workplace investigations are conducted correctly.

 As has been seen recently, failure to do so has far-reaching consequences, not only in damaging the organisation’s reputation with the public, but internally damaging workplace culture and creating a loss of trust in leadership, which will take significant time and resources to repair, if they are, indeed, repairable at all. 

Aaron Goonrey is a Partner and leads the Australian Employment & Rewards practice at Pinsent Masons and Jessica Park is an Associate at Pinsent Masons. The advice in this article is general in nature and does not constitute formal legal advice.

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Managing workplace psychosocial risks such as stress, harassment and low job control has long been a priority in most organisations, with the recent introduction of a new Code of Practice to manage psychosocial hazards at work only intensifying the spotlight on these issues.

However, the breakneck speed of technological advancement, combined with changes to our ways of working, means today’s leaders are also encountering psychosocial hazards that never crossed their predecessors’ desks.

Mass digitisation and remote work also carry the potential to exacerbate familiar hazards by creating new avenues for inappropriate or harmful behaviour at work, requiring even more vigilance from employers to manage these risks. 

HRM spoke with two experts to uncover some of the new and pressing challenges organisations are facing when it comes to managing psychosocial safety, and the steps HR, managers and leaders can take to keep these risks in check.

1. Workplace technology-facilitated sexual harassment

Workplace technology-facilitated sexual harassment (WTFSH) is becoming more and more prevalent in Australian workplaces, according to a recent report by Australia’s National Research Organisation for Women’s Safety (ANROWS).

Concerningly, the report’s findings show that one in seven Australians admit to using technology to engage in workplace sexual harassment, including inappropriate messages, calls, emails or social media communications. This behaviour was more commonly perpetrated by men (24 per cent) than women (seven per cent).

Given that these findings are based only on employees who admitted to harassing others at work, the actual number of people who could have engaged in this behaviour is likely to be even higher, says Alex Newman, Associate Dean Faculty and Professor of Management at Melbourne Business School. 

What’s more, this form of harassment can be extremely difficult to monitor.

“There are a lot of privacy concerns around monitoring [employees’ activity],” he says. “Some organisations do it, but I think a lot of organisations are scared to because of privacy issues, so there is a huge potential for [WTFSH] to occur.”

Tech-enabled harassment is just as likely to occur outside the workplace as inside it, he says, and he has noted an increase in harassment via social networking sites in recent years. 

Given how difficult this behaviour can be to monitor, Newman suggests that employers’ best tool to manage and prevent this behaviour is appropriate training.

“For some people, because they’ve been brought up in this digital world, that separation between personal and work lives isn’t always that clear,” he says. “That’s why training where inappropriate behaviour is outlined in detail is really important.

“[Employers] also need to make it easier to report digital sexual harassment – there need to be mechanisms where people are able to report it without fearing the consequences.”

From a legal perspective, HR should ensure policies and codes of conduct are properly updated to account for the risk of tech-enabled harassment.

“There should be proportional, consistent responses to people who engage in inappropriate behaviours,” says Newman.

Creating an environment where WTFSH is less likely to occur in the first place requires leaders to drive a deeper cultural shift, he says.

“As a leader, role modeling the kinds of behaviours you expect from people working for you is really important… It’s about creating an inclusive culture that is respectful to all people. 

“I think fostering diversity in leadership is the key to having more inclusiveness and respect. Unless we get people who are from diverse backgrounds into leadership positions, things don’t change.”

 “As a leader, role modeling the kinds of behaviours you expect from people working for you is really important.” – Alex Newman, Associate Dean Faculty and Professor of Management at Melbourne Business School

2. Digital overload

Particularly since the proliferation of remote and hybrid working, the volume of digital tools and communications employees need to navigate on a daily basis often leads to a feeling of being overwhelmed with technology.

According to a recent study by OpenText, 80 per cent of Australian workers experience ‘information overload’, driven by factors such as having too many messages and apps to check each day, which is up from 60 per cent in 2020. Over a quarter (27 per cent) reported having to access 11 or more accounts, resources, tools and apps every day.

“If you’re on the computer the whole time, constantly trying to read people’s social cues when you can’t see a whole person, and maybe there’s a delay in the internet connection, it involves much more cognitive effort from the brain and it can make you very fatigued,” says Caroline Knight, senior lecturer in management at the University of Queensland Business School. 

“The risk is that there’s no cutoff period, so you end up just always being on. And, now we’ve got the new bill coming through around the right to disconnect, it’s super important [to address this]. But at the same time, it’s not a one-size-fits-all.”

Given that many employees now work on flexible schedules, enforcing strict work and communication hours might alleviate digital overload for some, but might create more stress for others, she explains. Just as employees who work a traditional 9-5 day should not feel pressured to respond out of hours, employees on flexible schedules should not be pressured to be online outside of their chosen hours.

What’s more, her research has demonstrated that excessively monitoring employees’ digital activity can lead to increased stress overall. 

As a result, helping employees manage digital overload means empowering them with the tools and autonomy to create their own balance, she says.

“There needs to be a cultural shift in organisations so they’re not expecting people to respond [at all hours]. For example, we often see people have in their email signatures things like, ‘My work hours might be different from yours, so don’t feel obliged to respond now.’

“I think people still need the flexibility to be able to work when it’s best for them, but not to feel forced to always be ‘on’ because that will just lead to burnout and fatigue.”

According to Newman, hybrid working and the return to work create an opportunity for employees to reconfigure their schedules to ensure some time is spent away from the digital realm.

“Your days in the office could be the time where you [limit] technology use – that’s when the meetings occur and you engage [with colleagues],” he says.

“Certain organisations also have a touch point every day where the team gets together and they discuss things and then agree not to email until the next day when they can touch base again.”

Rather than monitoring employees’ activity to manage digital overload, he suggests using employee pulse surveys to guide policy and interventions.

“Ask the employees whether they’re feeling stressed or overloaded, and ask for their solutions about how we can reduce the amount of traffic.”

“In the hybrid [and remote] workplace, the relational aspects of work can get eroded. There’s research showing that relationships stagnate, and we don’t necessarily develop new ones.” – Caroline Knight, senior lecturer in management at the University of Queensland Business School

3. Increasing loneliness

The prevalence of digital communication tools means that, in some ways, we have never been more connected. However, a recent report shows that almost a third of Australians are experiencing loneliness. 

The research, conducted by mental health network Ending Loneliness Together, found that Australians who feel lonely are 4.6 times as likely to have depression, 4.1 times as likely to have social anxiety and twice as likely to have chronic diseases. Loneliness has even been linked to premature death. 

“In the hybrid [and remote] workplace, the relational aspects of work can get eroded,” says Knight.

“There’s research showing that relationships stagnate, and we don’t necessarily develop new ones. It can mean that you don’t have the general chit-chat – it’s more about just getting a task done. It’s that disconnection and isolation which then leads to that feeling of loneliness.”

Many people also find it easier to reach out about work and mental health struggles in a face-to-face setting, she adds, and lack of exposure to colleagues can make employees feel that they are the only ones experiencing difficulties. 

To help overcome this, Knight suggests a number of ways employers can facilitate greater connections among employees in dispersed locations.

“One thing you can do is create peer buddy systems so people feel there’s someone they can reach out to. Or, you could have an agreement where individuals organise themselves into groups and connect when they’re working from home. 

“Anecdotally, I also know a couple of colleagues who work closely together, and sometimes they’ll just have Zoom on while they work.”

In a hybrid setup, ensuring employees get the most out of their face time with colleagues on the days they are on-site can help mitigate loneliness on the days they work remotely. Enhancing workplace design can be an effective tool to facilitate this, says Knight.

“I’ve recently been working with an organisation in Brisbane that has made its organisation much more open-plan. It’s got lots of collaborative spaces, and everything is like glass, so you can see everybody, and you can just go up and talk to people. And it’s very much meant to say, ‘This is where we connect.’”

While strategies to manage loneliness will vary greatly by industry and individual, she stresses the universal importance of a supportive, trusting environment in preventing loneliness, isolation and stress among employees.

“It’s those small little check-ins – just saying, ‘How are you?’ – that really add up to make a massive difference.”

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An employee of a Sydney-based jeweller has been granted a record-breaking $268,000 in damages after the Federal Court found her employer subjected her to sexual harassment and victimisation. 

The previous record for damages in a federal sexual harassment case was set in 2019 when a law firm was ordered to pay $170,000 to an employee who had been harassed by a colleague.

“[This case] is a really useful, contemporary example of conduct that had a significant impact on the victim, and also the responsibility of leaders to demonstrate the best qualities of personal behaviour in a workplace,” says Will Snow, Director at Snow Legal. 

Unpacking the case in question

In her decision, Federal Court Justice Anna Katzmann found that the employee in this case had been badgered with unwanted advances from her employer, and had also been victimised for taking her complaint to the Australian Human Rights Commission (AHRC) in August 2020. 

According to the ruling, the owner of the jewellery store had confessed romantic feelings for the employee in January 2020, and had continued to make advances towards her over a prolonged period after she told him she was not interested in a romantic relationship with him.

During the months that followed, the employee said the owner repeatedly made comments about her appearance, sent her inappropriate text messages and gave her thousands of dollars’ worth of unsolicited gifts, including jewellery from the store. She also reported an occasion when he had touched her inappropriately.

In June 2020, while he was driving the employee home from work, the store owner once again expressed his romantic feelings for her. She responded by telling him she still did not feel the same way, and that he should move on. 

Following this incident, the employee began to experience acute anxiety symptoms and insomnia as a result of his behaviour. She took a week off work to recover, and when she returned, she said her working relationship with her employer started to deteriorate. 

Unsure what to do, she sought legal advice and later flagged a complaint of sexual harassment with the AHRC. In response, the jeweller’s legal team wrote a letter refuting the allegations and implying that the employee had stolen some of the jewellery the owner had gifted her, threatening to report her to the police.

During the court’s investigation, the text messages between the two parties were examined to determine the veracity of the employee’s allegations. While she had been friendly with the owner, and had shown appreciation for the gifts, the court accepted that her accounts of harassment and their impact on her mental health were genuine.

Interestingly, the emojis used in their texts were considered by the court; for instance, the ruling reported that, when the employee was presented with a text she had sent, “She accepted that the unicorn emoji was her way of showing appreciation to [the store owner] for the gift.”

“I’ve never seen more emojis in a judgement,” says Snow. “It’s a really interesting case study for HR as a contemporary expression of how people communicate and work.”

“It goes to show that a business in this situation, without any policies at all, could never demonstrate that it had taken reasonable and proportionate measures to stop unlawful conduct from occurring.” – Will Snow, Director, Snow Legal.

After finding in the employee’s favour, Katzmann ordered the business to compensate the employee with $140,000 in general damages, $15,000 in aggravated damages, $23,070 for past economic loss, $46,284 for future economic loss, $3000 for future out-of-pocket expenses and $40,000 for victimisation.

“General damages are damages for her humiliation or distress,” says Snow. “The court is acknowledging there that the behaviour, as it occurred over quite a long period of time, had a profound impact on her.

“The amount of $40,000 for victimisation was probably the most unique feature [of the payout]. Victimisation is when you treat someone less favourably because they’ve made a complaint. 

“When [the employee]’s lawyers wrote [to the employer] regarding her situation, and then, in response, the employer asked for a number of items of jewellery to be returned… that was criticised by the court as retribution for the fact she raised the complaint in the way that she did.”

Changes to handling of sexual harassment cases

The record-breaking payout in this case exemplifies the stricter approach to workplace sexual harassment that the government has taken in recent years. 

In December last year, the Sex Discrimination Act 1984 – under which this case was brought to the Federal Court – was updated with the inclusion of a positive duty for employers to take ‘reasonable and proportionate measures’ to eliminate sexual harassment and discrimination in the workplace.

The need for employers to take action to address this behaviour at work was laid bare by the AHRC’s most recent national survey (2022) on sexual harassment in Australian workplaces, which revealed that one in three Australians had been sexually harassed at work in the previous five years.

The most common forms of sexual harassment included sexually suggestive comments or jokes, intrusive comments or questions, inappropriate staring or ‘leering’ and unwanted touching. Certain cohorts were particularly vulnerable to this behaviour, including women, members of the LGBTQIA+ community, people living with disabilities and people aged 15-17.

Another concerning finding from this report was the fact that fewer than one in five victims of workplace sexual harassment (18 per cent) made a formal report or complaint about it – and, among those who did speak up, 40 per cent said no changes occurred at their workplace as a result. 

Snow says one of the factors at play here might be a lack of policies or processes to guide employees in making formal complaints, or feelings of lack of safety to do so. In this case, the jeweller’s failure to create a formal sexual harassment policy played heavily against it. 

“It goes to show that a business in this situation, without any policies at all, could never demonstrate that it had taken reasonable and proportionate measures to stop unlawful conduct from occurring,” says Snow.

For small businesses such as this one, where there is no in-house HR department, he suggests that employers consider how they can build a clear avenue for employees to report misconduct.

“One of the key findings from this case is that, if you don’t provide some mechanism for people to raise concerns, then often their only option is to go to an external party.

“That external party might be a lawyer, or it could be the Australian Human Rights Commission. So one of the things to consider, especially for smaller businesses that don’t have an in-house HR function, is [whether they should] partner with an HR consultant who is available to employees.

“There needs to be some sort of complaint handling mechanism so people can raise issues or concerns. And [this case is] an education piece for all businesses that, just because you’re small, it doesn’t mean you can get away with it.”

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Editor’s note: This article has been updated and was originally published on 21 November 2022.

The first tranche of industrial relations (IR)  reforms has landed with the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill, tabled in Parliament on 27 October 2022 and passed by the Federal government on 2 December 2022.

The Bill includes a wide array of changes in the areas such as gender equity, job security and flexible working arrangements.

Below are some of the key areas of change that HR should be across.

1. Gender equity

There are some significant changes in the area of gender equity. Firstly, gender equity will be included as an object of the Fair Work Act and the modern award/minimum wage objective.

 Pay secrecy clauses will banned, and it will be a civil penalty contravention for an employer to include such a term in a contract or written agreement. 

The new provisions define employees’ entitlement to share pay information as a workplace right for the purpose of the general protections in the Fair Work Act.

The current equal remuneration provisions will be amended to incorporate the substance of Queensland’s equal remuneration principle, including the removal of the need for a male comparator (a direct male counterpart performing the same role whose pay demonstrates discrimination). The work value provisions will be amended to include consideration of past gender-based assumptions.

To assist the Fair Work Commission (FWC), two expert panels will be created for Pay Equity and the Care and Community Sector.

2. Flexible working arrangements

The right to request a flexible working arrangement in certain circumstances, for example to manage carer responsibilities, is currently a national employment standard (NES). However, the present provisions have been criticised for failing to include a guaranteed dispute resolution mechanism in cases where an employer has refused a request. 

The Bill includes an amendment that would enable employees to access the FWC for arbitration where disputes over requests for flexible working arrangements cannot be resolved in the workplace.

3. Sexual Harassment

New provisions prohibiting sexual harassment “in connection with work” will be enacted to implement Recommendation 28 of the Respect @Work: National Inquiry into Sexual Harassment in Australian Workplaces. The new division will include a dispute resolution process modeled on the General Protections framework. 

The provisions allowing the FWC to make “stop sexual harassment orders” will be moved into this new division. The FWC will also be empowered to make other orders, including compensatory orders to deal with sexual harassment complaints if parties agree to arbitration. 

Complaints would need to be flagged within 24 months of the most recent incident. If the FWC is unable to resolve a matter, it will issue a certificate to that effect, and the matter can progress to court.

New grounds of discrimination of breastfeeding, gender identity and intersex status will be included for purposes of modern awards and general protections provisions.

4. Job Security

Job security will now be included in the objects of the Fair Work Act.

In addition, new restrictions on the use of fixed-term contracts exceeding a period of two years will be introduced. These provisions will allow several exceptions, including contracts for specialised tasks, government-funded positions or as permitted by a modern award. 

The lower house made amendments to the Bill proposing that employers would be allowed a period of 12 months to adjust to changes to fixed-term contracts, and the anti-avoidance provisions will be strengthened by adding a prohibition on failing to re-engage an employee and instead engaging another person to do the same work.

5. Bargaining

The most contentious changes proposed in the Bill are in enterprise bargaining, and this is where the majority of public debate has been focused since the Bill was tabled. The changes include:

• Initiating bargaining: a majority support determination will no longer be required when negotiating a replacement agreement where no more than five years have elapsed and the proposed agreement covers the same group of employees.
• Types of agreements: existing provisions are to be amended for greater access to multi-employer bargaining. Participation is voluntary and industrial action is not available.
• Single interest bargaining authorisation: It is proposed to extend this stream to allow employee bargaining representatives to initiate the making of multi-employer agreements with groups of employers (such as franchisees in the same franchise) who share “clearly identifiable common interests”. Small businesses would be excluded from these provisions. 
• Supported bargaining authorisation: ‘supported bargaining’ will replace the low paid bargaining scheme which was introduced into the FW Act on inception to encourage bargaining in low paid sectors. This would permit greater FWC involvement in supervising bargaining, including access to arbitration where the FWC has made an intractable dispute declaration. 
• Industrial Action: The FWC must make an order directing the parties to attend a compulsory conference if it makes an order for a protected action ballot.
• Intractable disputes arbitration: It is proposed that a bargaining representative can apply for an intractable dispute declaration for a proposed enterprise agreement, except a greenfield agreement.
• Better Off Overall Test (BOOT): Clarification that the BOOT requires a global assessment that considers whether the terms of the agreement overall are more beneficial to employees when compared with the applicable modern award.
• Termination of Enterprise Agreements: A change to the FWC’s powers to terminate expired enterprise agreements on the initiative of employers during industrial action. The Bill proposes that s 226 be amended to require the FWC to consider whether termination of an expired agreement would be in the public interest, taking account of the following: continued operation of the agreement would be unfair for employees covered; or the agreement does not or will not cover employees; or the continued operation of the agreement will pose a significant threat to the viability of the business and that termination of the agreement would reduce redundancies.

An employer will also be required to guarantee that any employees made redundant following the termination of the agreement (and for up to 5 years) would be guaranteed the redundancy entitlements in the terminated agreement. Employers will be required to notify employees of termination of the agreement, and failure to do so would attract civil penalties.

So called ‘zombie agreements’ that remain operational as a consequence of the original transitional provisions in the Fair Work legislation would be subject to a sunset provision so they expire at the end of a grace period’ of 12 months after the commencement of the Act.

6. Institutional Changes

The Bill abolishes the Australian Building and Construction Commission and the Registered Organisations Commission, with their functions transferred to the Fair Work Ombudsman.

The lower house made an amendment to the Bill stating that a National Construction Industry Forum will be established as a statutory advisory body.

The Government has indicated that there will be further legislative proposals in the new year and a whitepaper is currently being developed by the Employment Taskforce in Treasury to be released in September 2023.

This article was republished, with permission, from Harmers Workplace Lawyers. The content was originally published on 18 November 2022. Joellen Munton is an Executive Counsel & Team Leader at Harmers Workplace Laywers, and Julie Gordon is a Solicitor.

Disclaimer: This news alert provides a summary only of the subject matter covered without the assumption of a duty of care by the firm. No person should rely on the contents as a substitute for legal or other professional advice.

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Five years have passed since the #MeToo movement exposed the use and some say abuse of non-disclosure agreements (NDAs) by employers to cover up sexual harassment by silencing the voice of survivors.  

Despite the pleas for reform by survivors, unions, employer associations and the community at large, many Australian jurisdictions still allow this practice to continue. Indeed, NDAs have, for many years, been standard practice for employers dealing with sexual harassment complaints in Australia.

However, a recent legislative proposal from the Victorian government could soon change things. More on that in a moment. First, let’s look into the ways in which NDAs have been potentially misused in the past.

What is an NDA?

In the context of sexual harassment complaints, a non-disclosure agreement is a legally enforceable confidentiality agreement whereby a financial sum is provided to the complainant by the organisation in settlement of the matter. In exchange, the complainant agrees not to discuss the matter publicly or take legal action against the organisation. 

NDAs have historically been attractive to employers to avoid short-term reputational issues, maintain share price and minimise liability. Longer term, however, they are increasingly being recognised as a way to mask the often toxic company culture that enabled the harassment to take place.

Unless deliberate strategies and culture change projects are deployed to address this, such behaviours will permeate and dysfunction will perpetuate. Further, repeat offenders are emboldened and hidden behind closed doors – often kept in the same or similar position with limited consequences for their actions.  

Voiceless victims, no transparency and inability to work

There are myriad concerns to arise from the use of NDAs in sexual harassment claims. The most apparent issue is that victims are silenced in perpetuity. 

They do not have agency over the narrative of what happened to them, even where allegations have been substantiated, and are unable to talk to colleagues, friends, family or prospective employers about the harassment should they wish to.  

“If passed, [Victoria] will be the first Australian jurisdiction to implement such prohibition to ‘break the silence’ of victims of sexual harassment in the workplace. 

This often leaves them feeling isolated and distressed. By silencing the discussion, awareness of the prevalence of sexual harassment is reduced and social change is inhibited. Employers in turn often miss the opportunity to fix systemic and long-term work health and safety challenges presented by the misconduct and to send a clear message about inappropriate behaviour to employees, stakeholders and the broader community. 

Separately, some survivors claim it is difficult for them to find employment following the use of NDAs as they are unable to disclose the real reason they left the organisation, sometimes with only a short period of service. This can look like a blemish on their record and employers might assume they’re “flighty” or lack loyalty.         

This may drive women out of the workforce, given the gendered nature of sexual harassment (in the Victoria Equal Opportunity and Human Rights Commission inquiry into sexual harassment, 92.5 per cent of respondents were female).  

Victoria unveils new form of NDA

In a ground-breaking moment in Australian history, the Victorian Government has accepted in principle the recommendation made by Ministerial Taskforce on Workplace Sexual Harassment (Taskforce), prohibiting the use of a non-disclosure agreement in workplace sexual harassment matters.  

If passed, this will be the first Australian jurisdiction to implement such prohibition to ‘break the silence’ of victims of sexual harassment in the workplace. 

The Taskforce recommended Victoria adopt a similar approach to Ireland’s model contained in the Employment Equality (Amendment) (Non-Disclosure Agreements) Bill 2021 (Irish Bill). 

Although not yet enacted, the Irish Bill prevents employers from entering NDAs in circumstances where an employee has experienced or made allegations of sexual harassment or unlawful discrimination, other than where this is the expressed wish and preference of the employee.  

An NDA entered at the employee’s preference will not apply in relation to communications between the employee and specified persons (including legal professionals, medical professionals, mental health professionals, prospective employers and the employee’s friends and family). To be enforceable, the following criteria must be satisfied:

• The employer has offered the employee independent written legal advice, at the employer’s expense
• The employer has not made undue attempts to influence the relevant employee in respect to the decision to include a confidentiality clause
• The NDA does not adversely affect the future health or safety of a third party or the public interest 
• The NDA includes an opportunity for the relevant employee to decide to waive their own confidentiality in the future
• The NDA is of a set and limited duration.

Allowing the victim to tell their story and not imposing a blanket prohibition on its disclosure, means they have agency to decide whether they sign an NDA should they wish to maintain their privacy, or feel doing so is in their personal best interest. The choice they have to sign an NDA, posing an increased risk of conduct being exposed publicly, may also deter some harassers.

Champions of Change Coalition further suggested that a new form of NDA should expressly carve out the right of the organisation to disclose, in a de-identified way, that a complaint has been made and how it had been dealt with, as well as any substantiated outcomes to increase transparency and accountability. 

As this form NDA is relatively new, therefore there is limited information on how common its use is by employers in Australia. Nevertheless, once the Victorian legislation is passed, there will be increased pressure on all States and Territories to follow suit.

Ending the silence

In light of the strong stance against sexual harassment taken by Victoria and reports such as Respect@Work and Set the Standard, Australian employers should proceed with caution when using NDAs in sexual harassment matters.  

Employers may be proactive and amend their NDAs to permit survivors to discuss their experiences and only seek confidentiality on key sections of a settlement agreement, such as the terms of settlement, including payments made.

Employers are beginning to consider and accept that the voices of survivors need to be heard to eliminate sexual harassment in the workplace and to hold perpetrators accountable. 

The proposed Victorian legislation will mark an important first step in breaking the culture of silence in Australia. If other states do not introduce similar laws, it may be that employers pivot to effectively nationalise the proposed Victorian NDAs in their workplaces by implementing national policies that reflect the Victorian laws.

If they do not, the unpalatable result will be that survivors in Victoria will have more agency while survivors in other jurisdictions will remain silenced. 

Fay Calderone is a Partner at Hall and Wilcox law firm.

Creating a new non-disclosure agreement process is just one way to fight against sexual harassment at work. AHRI’s short course on bullying and harassment will equip you with more preventative tools. Sign up for the next course on 8 September.

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They say the past always comes back to haunt you, but what if you’ve already paid the price for your actions? Should you continue to be punished for your prior mistakes?

A large Australian retailer was recently faced with these questions when it found out that a 53-year-old pricing coordinator it had recently hired and promoted was previously found to have sexually harassed a co-worker when he worked as an accountant with a different organisation in 2009.

In October 2021, a month after the retailer had promoted the coordinator, he claimed it made the decision to summarily dismiss him when it became aware of the Federal Court’s 2013 finding against him.

The coordinator says the response was “outright vengeful”, according to Workplace Express [gated], and is now suing the company, claiming he has been discriminated against. 

The coordinator has asked to be reinstated or for $167,000 to cover two years’ lost wages (he says it could take a man of his age that long to find employment now that he has been banned from being readmitted as an accountant) as well as general damages.

HRM has reached out to the employer for comment and is yet to hear back, but according to reports from the AFR, a spokesperson confirmed that the coordinator was let go during his probation period and that it will be defending the claims made against it, if its submission to have the lawsuit thrown out on 29 March isn’t successful.

So how should employers respond when they learn of an employee’s toxic past? And at what point is someone legally entitled to a second chance? HRM put these questions to Michael Byrnes, Partner at Swaab law firm.

Facts of the initial case

In order to make a call about whether or not the employer’s response was reasonable and proportionate to the behaviour, we first need to briefly unpack the details of the initial court case.

In 2013, the coordinator – then a contracted accountant with a recreational organisation – was ordered to pay $476,163 in damages, lost wages (past and future) and medical expenses for the verbal and physical harassment of a supervisor he worked with in May 2009. At the time, this was one of Australia’s largest sexual harassment payouts. However, he was not criminally charged.

According to the court’s notes, the coordinator made “vulgar and explicit” comments towards the supervisor at a work social event and then “engaged in unwelcome sexual intercourse” with her while she was “heavily intoxicated”.

The coordinator claimed he and the supervisor had been engaging in consensual sexual behaviour.

In an exchange between the supervisor and coordinator, the supervisor denied the behaviour was consensual (see section 212 of the court documents) and Justice Mordy Bromberg noted that the supervisor was left with post-traumatic stress from the events as well as psychiatric illnesses, which could impact her ability to work in the future. 

The court documents noted: 

“Prior to the harassment, [the supervisor] was a confident, highly functioning individual who was outgoing and socially active. Her reaction to the sexual harassment has resulted in dramatic changes to both her personality and her lifestyle.

In the period between the harassment and the trial, [the supervisor] spent most of her time at home alone. She was frequently teary. She had difficulty sleeping and experienced recurring nightmares which caused her to grind her teeth and required her to wear a protective mouthguard to bed. She was often crippled with fear and suffered from agoraphobia. She was scared to take public transport and her fear of [the coordinator] led her to install security cameras in her former home.”

The supervisor resigned from her role five months after the harassment took place.

Initially, the coordinator argued that he and the supervisor weren’t technically co-workers, as he was a contractor, and that the physical harassment hadn’t occurred in the workplace as it took place in a corridor between the office and its lifts.

Bromberg rejected this claim, stating: the “objective of eliminating sexual harassment in the workplace would be significantly undermined if associated common areas such as entrances, lifts, corridors, kitchens and toilets were construed as falling beyond the geographical scope.”

And while the fact that the two were not offical colleagues protected the coordinator from elements of the Sex Discrimination Act, Bromberg found he had still breached s28B(6) of the Act, which prohibits sexual harassment from “workplace participants” – a section that was added to protect employees from the behaviour of onsite visitors.

 “There’s no obligation on an employee to positively disclose that they’ve had an adverse finding of this kind against them. So it’s incumbent on employers… to ask the right questions.” – Michael Byrnes, Partner, Swaab.

In assessing the claims of sexual harassment, Bromberg had to weigh up conflicting accounts from the supervisor and the coordinator.

Ultimately, Bromberg looked at the previous character of the individuals, claiming the supervisor was someone who had proven to be “a hardworking individual” who was “an honest person [and] respectful of the truth”. However, he determined that the coordinator was “an arrogant individual with little or no regard for the truth”.

Ultimately, the court sided with the supervisor.

Do employees have to disclose their past?

There’s no denying that claims made in this case are serious, but, from a legal perspective, is the coordinator entitled to a second chance after paying for his behaviour, both financially and from a reputational standpoint?

The coordinator claimed there’s no evidence he has been or would be a serial offender, and that he should be afforded the legal right to employment.

“A tribunal likely won’t just assume that an employee is going to engage in similar conduct again… the conclusion might be reached that they’ve ‘done the crime, done the time,'” says Byrnes.

There are rare exceptions to this, he adds, when dealing with criminal conviction matters.

“There are circumstances where some people are absolutely prohibited from performing certain jobs, for instance working with children or vulnerable people.”

Another example would be if someone’s credibility and honesty has been put into question by engaging in theft or fraud. In that case, an employer might have good reason not to entrust them with managing large sums of money, if that was an inherent requirement of the role.

“It is legitimate and appropriate for an employer to take account of a previous adverse finding of this kind when making a recruitment decision,” says Byrnes.

“But there’s no obligation on an employee to positively disclose [i.e. volunteer this information] that they’ve had an adverse finding of this kind against them. So it’s incumbent on employers who want to know whether there have been any adverse findings of this kind, whether they be criminal or civil, to ask the right questions.”

If an employee is asked, ‘Have you ever had any civil cases brought against you related to employment matters?’ and they had but said ‘no’, that could be a different story.

“An employee would need to answer such a question honestly. And then the failure to answer the question honestly could become the basis of termination of employment.”

The strength of the ground for dismissal would be determined by the gravity of the deception, he says. White lies about trivial matters are highly unlikely to come back to bite (after all, who hasn’t stretched the truth in a job interview before?). But significant lies that put the company or its people at risk could form the basis of a termination.

What is the coordinator actually claiming?

While the basis of the coordinator’s lawsuit is that he believes his dismissal was without merit, he is also claiming that the retailer took adverse action against him due to his ‘social origins’. 

Under the Fair Work Act s351(1), employees are protected from discrimination due to their social origins, which usually includes their ‘class, caste or social-occupational category’ but could also cover the way in which someone is regarded within a group of people.

While it’s unclear how this applies to the current circumstances (it will become clearer if the case is heard in the following months), Byrnes says this claim is “very rarely used”.

“It’s not yet apparent if he will be able to rely on this ground for a claim,” he says. “Because you need to be able to show that [the behaviour] is unlawful under either the Federal legislation – and social origins isn’t unlawful under the applicable Federal laws – or the state legislation in which the conduct occurred.”

(You can read more about social origin protections here). 

The retailer has rejected the discrimination allegation, as well as the allegation that it had breached the employment contract “without merit or reasonable basis”.

Ensure you follow the right processes

Another accusation the coordinator made against the retailer was that it failed to discuss the matter with him when it became aware of his past before summarily dismissing him, according to Workplace Express.

Whether or not this is true, Byrnes says it’s important for employers to consider procedural fairness when investigating matters of this nature.

“It’s a two-step approach,” he says. “First, it would be prudent to present your preliminary findings to the employee about the adverse finding or event and give them the opportunity to explain it and provide some context.

“Secondly, having heard that, if you’ve formed the view that their employment should be terminated, give the employee an opportunity to make a submission as to why their employment shouldn’t be terminated, if they wish to, and then consider that submission.”

This is an imperative step if employees have access to the unfair dismissal jurisdiction – i.e. if their employment is covered by a modern award or enterprise agreement, or they fall under the high-income threshold, and have served the minimum employment period (6 months for most employees, 12 months for those employed by a small business)), as it demonstrates that you’ve followed a procedurally fair process. This can work in an employer’s favour in the event of a claim.

How can employers protect themselves?

It’s best to conduct a risk assessment prior to making decisions about terminating employees for past behaviour, says Byrnes.

This could include whether the behaviour would prohibit them from performing their job and whether their employment poses any risks to the health and safety of the rest of your workforce.

A simple way to protect your company from both making a bad hire and ending up in front of the court could be to ask more questions of candidates at the start of the employment journey.

While questions about someone’s criminal history are commonplace in the hiring process, it’s less common to ask of someone’s civil law history. Byrnes suggests expanding the question to include civil matters related to issues of bullying, sexual harassment or other forms of serious misconduct.

However, when doing this you need to be careful about asking questions about spent criminal convictions, which usually cover convictions made over ten years ago (less for juvenile offenses).

Spent conviction schemes are in place prevent discrimination on the basis of previous less serious convictions and they vary state by state. You can view the various state rules here.

It’s best to make a call about whether or not you’ll factor civil matters into your recruitment processes early in the piece, says Byrnes.

“If the question hasn’t been asked and is subsequently raised after the person has been employed, it’s much harder for an employer to terminate them.”

Learn how to tackle Sexual Harassment in the workplace and create a culture of respect with AHRI’s half-day course.
Enquire today for details.

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Momentum continues to build around tackling sexual harassment in the workplace following Grace Tame and Brittany Higgins’ recent speeches at the National Press Club and the public and media scrutiny Parliament House’s handling of these issues.

These and other high-profile cases of sexual harassment in recent years have led many employers to take a tougher stance on misconduct, roll out comprehensive training, and ensure they are abiding by a zero-tolerance policy.

A case in point occurred last April when a large organisation in the financial services industry summarily dismissed a long-standing senior manager for briefly touching a female colleague’s backside at after-work drinks. This was captured on CCTV footage.

The manager, who had worked at the company for 35 years and had an unblemished record, was dismissed after the company conducted an internal investigation into his behaviour.

The following month, the manager brought forward an unfair dismissal claim and, just last week, the Fair Work Commission found in favour of the employer.

In her findings, FWC Deputy President Melanie Binet emphasised how community standards around sexual harassment and appropriate conduct in the workplace have changed in recent years, and all employees should be well-aware of this fact. 

“The bar as to what constitutes consent for physical and sexual interactions has been significantly raised in the community since [the manager] commenced his employment,” said Binet.

“An even higher bar has been set for interactions occurring in work-related environments.” 

Lyndon Burke, Principal of Burke & Mangan Lawyers, says that community standards guide the law to a significant degree, and shape how the courts will respond to different cases throughout the generations.

“Courts’ views will change as community expectations change, but employers always have an obligation under Occupational Health and Safety legislation to keep the workplace safe for other employees,” he says. “Employers should be aware of what’s expected, and community standards play a large part in framing those expectations.”

Employee shown to the door

Given the very serious nature of the misconduct, summary dismissal was a reasonable penalty since there are serious risks for failing to act on the employee’s poor behaviour, says Burke.

“There are OHS obligations for employers because they have to mitigate against the risk of harm… So if you haven’t trained your employees, and you haven’t taken any action against people perpetrating misconduct, then you could get done for breach of OHS legislation,” says Burke.

While the manager put forward a defence that the employee he was accused of sexually harassing welcomed and encouraged the behaviour, this line of defence only serves to strengthen the accuser’s position, says Burke.

“This is a line of defence I often see in sexual harassment cases, which only increases the court’s view that these employees have no gauge on their conduct and the impact it has on others. In this case, we have an older man with 35 years of experience at the company and a junior employee, who was married with children.

“Younger people, or those on a lower grade, often feel trapped and don’t know how to respond to this sort of conduct. Junior employees are more vulnerable and they are the ones who should be protected.”

While length of employment may factor into a Commission’s decision, in this instance, an unblemished and long tenure didn’t make the dismissal unfair.

“If it’s a serious matter, then that won’t necessarily help the employee. In this circumstance, the impact on the employee, the reputational damage to the company, community expectations and standards around sexual harassment, mitigates against the finding that it could be unreasonable and unjust.”

The company’s need to protect its reputation was a significant factor that weighed into the judge’s ruling.

“[This] is a high-profile bank and interestingly, in its decision the Commissioner talked about how [it] had been through the Royal Commission, so banks were in the public spotlight and their reputation was something they wanted to uphold,” says Burke.

Training could save your company

There was only a “small window” of time between the training and the incident, and this worked in the employer’s favour, says Burke.

“The company required its employees to undergo significant training called Doing the Right Thing. It covered how to interact with each other, and focused on sexual harassment, discrimination and bullying. This training happened just two months before the incident.”

Oftentimes, employees are required to complete training when they are onboarded, and this initial training might not be followed up with a refresher course or updated training throughout the course of their employment, says Burke.

This means a number of years could have passed between an employee’s training and the sexual harassment incident occurring, making it easier for an employee to claim they aren’t familiar with a company’s standards and policies for conduct.

A key takeaway from this case is the importance of running regular training on sexual harassment in the workplace, says Burke.

“Employers need to have policies in place about appropriate conduct, but there’s no point having a policy if you don’t train people. It’s invariably important that training occurs yearly.”

This should also be underpinned by clear and detailed policies.

“If you don’t have a policy along the lines of, ‘This is important to us and this is how we expect you to act in the course of your employment’, then the Commission could take the view that sexual harassment wasn’t such an important issue in the employer’s eyes that warranted them dismissing an employee.

“This isn’t to say employees can’t bring a sexual harassment claim, but employers may find it more challenging to defend a termination summarily.”

Learn how to tackle Sexual Harassment in the workplace and create a culture of respect with AHRI’s half-day course.
Enquire today for details.

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The toxic workplace culture at Parliament House has come under sharp criticism after a comprehensive review was launched by Sex Discrimination Commissioner Kate Jenkins last month.

The Australian Human Rights Commission’s Report, titled Set the Standard, called for clearer guidelines around the expectations and standards of alcohol use in Parliament, while also proposing to limit the availability of alcohol.

Excessive alcohol consumption was identified as a major risk factor contributing to the alarming prevalence of workplace bullying, sexual harassment and sexual assault within Parliament. 

Several participants noted how the fly-in-fly-out nature of the workforce meant they were often forced to share a room with a colleague due to limited hotel availability or budget restrictions. Shared accommodation, heavy drinking, a lack of accountability, among other factors, may have laid the groundwork for misconduct to occur.

It also became clear that alcohol wasn’t restricted to after-work events; politicians would be drinking when Parliament was still sitting, according to the report.

Of course, excessive drinking isn’t the only factor leading to sexual misconduct in Parliament. Numerous other risks, including casual sexism and discrimination, exacerbate the risk of sexual harassment and assault.

One participant described Parliament House as “the most sexist place I’ve worked”. They said there is a “workplace culture of drinking” and minimal accountability. 

“Young women, particularly media advisers coming in, particularly the younger women coming in, were like fresh meat and challenges,” the participant said. 

Of course, instances of dangerous drinking cultures are present across many industries, and a celebratory drink or a cold one at the end of a hard day’s work are very much part of Australian culture. This makes it hard to remove drinking entirely from our work culture – celebrations, tough days and milestones are often marked with a glass of something.

As many companies gear up for their office Christmas parties, ensuring there are comprehensive steps in place to keep employees safe is essential. 

This isn’t to say employees shouldn’t let their hair down as the silly season approaches – after all, it’s been a long and taxing year for many – but employees’ safety and wellbeing should always be kept front of mind.

HRM speaks to Nick Hedges, Director of ResolveHR, about how companies can create a safe drinking culture.

Don’t have time to read the whole article? We’ve summarised the key points below:

• • The Set the Standard report identifies five primary areas in which Parliament needs to shift its culture: leadership, diversity, equity and inclusion, systems to support performance, standards, reporting and accountability, and safety and wellbeing.
  • The report recommends that Parliament implement strategies such as limiting alcohol, running alcohol and drugs training, setting clear expectations around the use of alcohol,  and hosting non-alcohol events as part of a ‘harm minimisation’ approach.
  • Nick Hedges advises that workplaces put policies into practice by running regular and comprehensive training about responsible consumption of alcohol, and creating a safe working environment. 

What Set the Standard found

Before we dive into advice about creating a safe drinking culture, it’s worth touching on some of the recommendations made in Jenkins’ report as many could be translated to other organisations. But if you’re just looking for advice on addressing alcohol issues in the workplace, skip to the next section.

Over half of all people currently working in Commonwealth parliamentary workplaces have experienced at least one incident of bullying, sexual harassment or sexual assault in a work context, according to the Set the Standard report.

“That is unacceptably high,” Jenkins said when the report was launched. “Many people, both current and former staff, have had meaningful careers in parliamentary workplaces, motivated by a genuine commitment to contribute to the nation’s success… However, we found that even those with positive experiences participated in [the] Review in recognition that this workplace does not meet the standards that the nation’s Parliament should meet.”

Beyond the drinking culture issues, she points to a lack of clear standards of conduct, limited accountability, power imbalances, high-intensity work, the blurring of personal and professional life, intense loyalty to political parties, and the pursuit of political advantage as “specific risk factors” unique to Parliament House. Many of these risk factors also exist in other work cultures, too.

The combined testimony collated from more than 1700 contributions, made by current and former staff, revealed that “current systems and reward structures encourage, tolerate and enable misconduct, and processes are not equipped to prevent or address the consequences of that behaviour,” Jenkins outlined in the report.

Providing 128 recommendations for Parliament to radically change its workplace culture, the report breaks down the shifts required into five main areas:

1. Leadership: Urge leaders to recognise the problem through a joint Statement of Acknowledgement, and take active steps to ensure a safe and respectful workplace.

“No one is leading the parliament on these issues as they should be. There need to be clear expectations in place,” says Hedges.

2. Diversity, equality and inclusion (DEI): Create strategies and implement targets to improve gender equality in Parliament. This should entail continued review and reporting to the public to ensure accountability.

As the report notes, “Women are underrepresented in decision-making roles and… there is a lack of broader diversity across CPWs (Commonwealth Parliamentary Workplaces). This contributes to a ‘boys club’ culture and bullying, sexual harassment and sexual assault.”

A series of recommendations were outlined to improve DEI of women, First Nations people, people from CALD backgrounds, people living with disability and LGBTIQ+ people, including increasing representation particularly in senior parliamentary roles, improving physical infrastructure to increase accessibility and inclusion, and eliminating sexist and discriminatory language.

3. Systems to support performance: Set up a centralised Office of Parliamentarian Staffing and Culture to create and enforce standards and policies for all parliamentarians.

“Fundamentally, parliament is a workplace,” says Hedges. “When I’m talking to [employers], I’m emphasising that they have to have standards, policies, codes of conduct and minimum expectations of behaviour… So those working in the parliament, whether they be parliamentarians or staffers, need to abide by similar codes. There should be no excuses for [anyone].”

4. Standards, reporting and accountability: Establish an Independent Parliamentary Standards Commission that includes clear reporting avenues and sanctions for misconduct.

Misconduct and non-compliance in Parliament House would be referred to the Commission, and the Office would also deliver mandatory respectful workplace behaviour training, among other responsibilities.

5. Safety and wellbeing: Reduce the risk factors for misconduct by implementing a holistic health and wellbeing service, and clear alcohol policies.

The report found that there is a lack of clarity around work health and safety obligations, inconsistent approaches to managing risks, and limited recognition of bullying, sexual harassment and assault in the workplace. 

Alcohol limits to address workplace culture

Jenkins advised that restricting access to alcohol be included in comprehensive policies that clearly outline acceptable standards of consumption.

“When we write policies, we say that you can’t come to the workplace intoxicated or under the influence – you shouldn’t be operating machinery, and this would even extend to not being on your laptop,” says Hedges.  

If there’s reasonable suspicion that an employee is under the influence, a company can implement breath testing, he recommends.

As mentioned earlier, it’s not just alcohol that can contribute to toxic behaviours during social or out-of-hours work events: Parliamentarians are also away from their families, often working in high-pressure jobs with poor work/life balance, and dealing with a high degree of stress.

More steps need to be taken to alleviate the stress of those working long hours in high-pressure jobs, such as lawyers and bankers, says Hedges.

“What else is there internally that can act as a stress relief besides alcohol? Could employers run exercise classes for departments and bring in personal trainers, yoga sessions and other wellbeing strategies to offer stress relief?” says Hedges. “Are there other low-cost initiatives, such as walking meetings or holding meetings outside in a local park, that could be considered? Maybe the company could train one or two people to run meditation classes, and those employees become champions of that.”

The oft-said adage, ‘work hard, play hard’, can set a dangerous standard.

“At the moment, what they mean by ‘play hard’ is ‘get smashed’. ‘Play hard’ needs to take on a different connotation. Why can’t ‘play hard’ mean that we celebrate wins by going out for a social activity that doesn’t involve alcohol?”

Education to address drinking culture at work

It’s one thing to implement a workplace alcohol and drug policy, but for the standards to filter through to employee behaviour, policies need to be followed up with comprehensive training and align with your workplace culture.

“People need to be trained and understand them. It’s not just ticking the box and saying ‘I’ve read that’, it’s about unpacking and embedding it,” says Hedges.

Workplace policies, culture and training needs to be in line with its regulations, as a 2015 finding by the NSW District Court highlights.

The court found in favour of an insurance broker, who was unfairly dismissed after becoming intoxicated and passing out in a hotel corridor at a work event. He arrived hungover at work the following day.

Heavy drinking was found to be commonplace at the company, and other employees who had become intoxicated at work events had not suffered a penalty as serious as dismissal. The case made clear that a company’s disciplinary measures must be consistent with the prevailing workplace culture.

“There’s often a cultural aspect to employees getting drunk. We really push that aspect home with our clients,” says Hedges. “I always say that we’ll write up their alcohol and drug policy, but that everybody also needs to be trained about the policy, because if a company fires somebody for being drunk at work, the dismissed employee is going to turn around and say, ‘I don’t remember that. I read it years ago,’” says Hedges.

“At the moment, what they mean by ‘play hard’ is ‘get smashed’. ‘Play hard’ needs to take on a different connotation.” – Nick Hedges, Director of ResolveHR.

Training should be covered for new employees as part of an onboarding process, and refresher courses run at least every two years, says Hedges, adding that if a new policy is implemented, employees should be trained straight away. 

Regular training also needs to be interspersed with clear communication, particularly before a work event. 

Employers should reiterate the company’s expectations alongside its policies, says Hedges.

“If your expectation is that everybody will make their own way home [after a work event], or that the company will provide cab charges, put that element in your pre-event communication. You want to convey that everyone is there to look after each other, protect the business and say, ‘If anybody is over the limit, they will be asked to leave the function.’

“We’ve drafted those things for organisations and it works a lot better [than assuming your employees know these things already]… Set the expectations early.”

Alcohol at work functions can increase the chances of sexual harassment or assault occurring.
AHRI’s short course on Bullying and Harassment can help you tackle these issues.
Book in for the next course on 1 February.

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Sex Discrimination Commissioner Kate Jenkins told a panel at the National Summit on Women’s Safety the other week that she’s “not giving up” on having all 55 recommendations made in her landmark Respect@Work report implemented.

Of the 16 legislative and regulatory reforms that could have been adopted – with 12 separate legal amendments possible – just six made it into the final Respect at Work Amendment Bill passed the other week.

Notably missing was a “positive duty” clause, where employers would have a legal obligation to prevent sexual discrimination.

But what would this positive duty look like – and how could it be implemented?

What’s missing? 

The Respect@Work report recommended the Sex Discrimination Act be amended to force all employers, taking into consideration business’ resources, size, and circumstance, “to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible”. The report also recommended the Human Rights Commission be given powers to assess employers’ compliance to this duty.

A positive duty already exists under workplace health and safety law but doesn’t specifically apply to discrimination.

Jenkins wrote in her report that the lack of positive duty in the Sex Discrimination Act meant employers prioritised employment, work health and safety laws, placing a “heavy onus on individuals to complain” [about sexual harassment].

But in its response, the government said adding in extra laws could make the system too “complex and confusing for victims and employers to navigate”.

Why is this important? 

While Australia has some of the strongest workplace health and safety laws in the world, The Australia Institute’s Centre for Future Work senior economist Alison Pennington told Crikey, enforcement is often lacking.

“A key problem is there is severe under-resourcing for state and territory regulatory bodies like Safe Work,” she said. “There is a big cavern between what our workplace health and safety laws say and what happens on the ground.”

These laws also focus on tangible safety, such as hard hats and fluro vests, but don’t recognise the psychosocial consequences of harassment. Deunionisation of workplaces, she said, make it difficult for employees to press for discrimination issues to be addressed.

Another key issue is the lack of an easy complaints process for victims, as pointed out in Jenkins’ report. Giving power to the Commission to investigate workplaces, and to establish an easy complaints mechanism under the Sexual Discrimination Act, would push employers to see sexual harassment as a separate, serious issue, Pennington said.

“Currently we have extremely costly litigation channels.”

Pennington said for many women – who are more likely to work in insecure, low paid positions – raising harassment issues is tough and challenging their employer could lead to missing out on paid work.

“It’s a structural disempowerment of women that creates the basis for mass disempowerment through sexual harassment, and predators know that,” she said.

What would a positive duty clause look like?

Associate Professor of Law at the University of Technology Sydney Karen O’Connell told Crikey reforms were necessary because clearly, the current laws had already failed.

This amendment, she said, would ensure the equality sector, with the right expertise and knowledge, would oversee the important issue of sexual discrimination, instead of a sector used to looking out for physical dangers.

“The Commission would be able to give employers a lot of help and materials to implement these policies,” she said.

Victoria already has a positive duty to employers in its equality legislation which is one of the best in the world, O’Connell said. These laws make it so a victim doesn’t have to “martyr themselves” with a complaint, and push employers to be proactive instead of reactive.

“[Preventing sexual harassment and discrimination] is about equality, dignity and respect, so that women operate as equals in the workplace, and that’s not contemplated in the current workplace health and safety laws,” she said.

Amber Schultz is the associate editor of Crikey and was recently awarded Young Writer of the Year in the Mumbrella Publish Awards. This article was first published in Crikey and republished by its sister Smart Company. It is republished with permission. You can read the original article here.

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The NSW Court of Appeal has recently upheld the case of an employee, who claimed sexual harassment against her employer and a contractor over her depiction in a work health and safety poster.

The poster, as HRM earlier reported, showed a picture of the employee with her arms outstretched, gesturing towards the words “Feel great –” and, in even bigger letters, “Lubricate!”. The employee complained about the poster after it was displayed at the company’s various workplaces, and after being contacted about it by her (mostly male) colleagues.

The employer and the contractor – an occupational health service – both apologised and removed the poster, but the employee still brought actions alleging sexual harassment and sex discrimination.

Speaking to HRM, a spokesperson on behalf of the contractor said: “The template safety poster in question had been used by our client in numerous workplaces without incident or complaint.

“In this instance the poster was prepared by an all-female team who had no intention of using the physiological concept of joint lubrication in any other way than to convey the importance of moving the body – hence [the employee] (fully clothed & wearing a hard hat) stretching upward. Our client is saddened that its important message of workplace safety has been misinterpreted following a crass joke by her workmate.”

The NSW Civil and Administrative Tribunal, both at first instance and on appeal, heard submissions from the employer and contractor that intention was not to sexually harass the employee, and that the term ‘lubricate’ in the poster was meant to refer to “the generation of synovial fluid upon movement of the joints by [the employee] performing a stretching exercise.” 

However, the tribunal agreed that the poster was unwelcome conduct of a sexual nature, which could be anticipated to offend or humiliate, emphasising that whether sexual conduct was unwelcome was to be assessed subjectively.

The contractor appealed to the NSW Court of Appeal, but was unsuccessful, with the court unanimously upholding the tribunal’s findings, and making some strong statements on the way sexual harassment in the workplace has developed. 

These comments from the court, which recognise that sexual harassment can be subtle and indefinite just as it can be gross and intrepid, are welcome, in the context of soon to be amendments to workplace and discrimination legislation.  

With the Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 currently before the senate, employers will need to ensure they are suitably equipped to identify all forms of sexual harassment in the workplace, as well as address it adequately.

The appeal in a nutshell

The court rejected the contractor’s attempts to avoid responsibility for the conduct, reinforcing that the contractor and employer (who did not join the appeal) had been jointly responsible for the poster.

The court considered that the design, publication, display and distribution of the poster was “done by [the contractor] with the approval of [the employer]”.  Just because [they were] contracted to provide work health and safety training and services to the employer, did not mean they could avoid liability for the poster, the court ruled.  

The court emphasised that whether conduct was unwelcome was to be assessed subjectively by the person being harassed, and that a harasser couldn’t justify their actions by claiming their conduct was not ‘sexually explicit’.

Justice Lucy McCallum in particular criticised the suggestion that a woman feeling “great” because she lubricates couldn’t be sexual harassment because the message was not explicitly sexual, saying “the sexualisation of women in the workplace often isn’t”. 

Justice McCallum considered that all kinds of behaviour that was less explicit could amount to sexual harassment, including “innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod”.

Large damage orders

The contractor’s appeal was unanimously rejected, and the damages orders of the tribunal were upheld.

In a separate decision, the tribunal decided that the employee had suffered psychological injury, and that following her resignation, the employer and contractor should be responsible for her inability to earn wages.  

The tribunal would have ordered almost $320,000 in damages against the two companies, but was capped by statute such that the employee was awarded $200,000 for her ordeal.

The tribunal also agreed that the contractor’s apology, which was full of “weasel words” and attempts to avoid responsibility, should attract aggravated damages of $5,000.  The contractor was also ordered to pay the employee’s costs of the recent appeal.

Key lessons for employers

The court was willing to recognise joint responsibility of an employer and contractor. Even though the poster was actually put up in the company’s workplaces, the contractor was given authority to design it, and directed its placement after printing.  

The ‘joint responsibility’ finding of the court shows that employers need to broaden their scope when considering sexual harassment risk.  As employment moves away from “traditional models”, so too will the relational connection required to found a sexual harassment claim broaden.  

HR managers will need to consider the risk posed by agents and other entities when assessing the risk of sexual harassment in their workplace.

The ruling of the Court of Appeal shows that as society’s understanding of sexual harassment in the workplace evolves, so too does the range of conduct and behaviour which the courts will penalise.  

HR managers need to be aware of, and have systems in place to identify and respond to, all forms of sexual harassment in the workplace, whether or not that conduct is intended as a joke, or is seemingly innocuous.  

As this case demonstrates, employers could be on the line for significant damage awards for failing to take action against conduct which is unwelcome, whether or not it was of an explicitly sexual nature.

HR Managers should also keep in mind that this shift applies just as much to the conduct of employers as it does to employees; this case is an important example of sexual harassment not arising from conduct of an employee, but from the conduct of the employer.

Learn how to tackle Sexual Harassment in the workplace and create a culture of respect with AHRI’s half-day course.
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