Sex Work regulations review safety obligations

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2000 edition of SafetyATWORK magazine addressing some of the OHS issues in brothels

Consumer Affairs Victoria (CAV) is seeking public comment on some proposed revisions of the Sex Work Regulations.  Several revisions specifically address workplace safety issues but also indicate out-of-date thinking on worker safety and safety management.

Victoria licences its brothels and, as such, the occupational health and safety (OHS) laws apply as they do to all workplaces. However, the regulators of the sex industry seem to perceive OHS usually in terms of sexual health and hygiene even though statistics have shown that these issues are low risk hazards. This perception has lasted well over a decade as this 2000 article from National Safety magazine shows.

One of the major political changes over recent times has been the push, some would say obsession, to reduce bureaucratic red tape, ostensibly to reduce government and business costs of regulatory compliance.  One of the reasons complexity occurred was that regulations are created in isolation.  The proposed changes to the Sex Work regulations is the latest example of this silo approach.

The Sex Work Act 1994 states that two of its aims are to

“to maximise the protection of sex workers from violence and exploitation;… “and

“to promote the welfare and occupational health and safety of sex workers.”

One specific objective of the Exposure Draft of the sex work regulations is:

“… is to prescribe for the purposes of the Sex Work Act 1994—…requirements for the safety of persons working in a sex work business….”

“Safety” + “work” + “business. Clearly OHS laws apply. This fact is supported by CAV which regularly mentions OHS in its sex work information pages. So what is the fit between the two laws – the Exposure Draft and the Victorian OHS laws?

CAV seems to believe that it is necessary to specifically state that a sex workers refusal of services on the basis of safety should not be disputed:

“If a sex worker decides not to provide, or to stop providing, sexual services because the sex worker believes a situation is potentially violent or unsafe, the sex work service provider must not—

(a)  dispute the sex worker’s decision; or

(b)  initiate or allow punitive action against the sex worker; or

(c)  permit another person to do anything referred to in paragraph (a) or (b).”

Yet a related OHS obligation has existed since 1985 and applies to brothels as much as it does to any other Victorian workplace.  The Victorian OHS Act 2004 states:

“While at work, an employee must—

(a) take reasonable care for his or her own
health and safety; and

(b) take reasonable care for the health and safety
of persons who may be affected by the
employee’s acts or omissions at a workplace;……”

A worker has a duty to refuse unsafe work practices in order to “take reasonable care for his or her own health and safety…”  This may relate to many circumstances in a licenced brothel but likely to relate mostly to the obligation to refuse to provide services to a client who may have a sexually transmissible infection, or who may be violent or who may insist on having unprotected sex.

The employer has OHS duties to both the sex worker and the client.  Neither should be put at risk through the provision of services.

The proposed Sex Work regulations amendment is not needed.  Sex workers and brothel operators would have a clearly safety obligation by cross-referencing to the OHS Act.  This would also reinforce to workers and business owners that workplace safety obligations extend beyond the Sex Work laws and support CAV’s emphasis on its website about the relevance of WorkSafe Victoria’s inspectorate regime.

Penalty Units

It is also useful to point out the disparity in penalty units between each of these regulatory sections.  The proposed Sex Work regulation proposes 40 penalty units for an employer who disputes a sex worker’s decision against unsafe work.

Under OHS laws, if an employee fails to take reasonable care of their health, a prosecution could lead to 1800 penalty points.  If an employer fails to take reasonable care or fails to provide a safe workplace, they could be up to 1800 penalty units for a natural person or 9000 penalty units for a body corporate.

Why is there such a difference in penalty points between the two sets of regulations when both sections deal with the safety of workers?

Emergency Buttons

The Exposure Draft spends considerable time on the issue of emergency alarms or buttons in rooms in a brothel.

“If a business is or includes a brothel, the approved manager must ensure that all rooms used for sex work have a concealed alarm button, or equivalent communication device, that is in working order and can be easily accessed by the sex worker throughout the delivery of sexual services.”

This level of prescription of an OHS safety measure disappeared from OHS laws and practice in the 1990s when the level of risk was the primary consideration and control measures were to be safe, as far as is reasonably practicable.

It is well known that employers, and people, seek to achieve compliance in the false understanding that compliance is the same as safety.  A brothel owner or manager will ignore the “equivalent communication device” and only see “concealed alarm button”.  (Most alarm buttons are located within arm’s reach of the bed head) There may be circumstances where the location of an alarm button may increase a sex worker’s risk. To explain this, we have to talk about sex.

Sexual intercourse in brothels usually occurs in a bed but people may lie across the bed, at the foot of the bed or in the usual alignment.  Where should the “easily accessible” alarm button be in these circumstances?

Perhaps sex acts occur off the bed, on the floor, on a chair….  Where should the easily accessible button be here?

Perhaps the alarm button could be worn by the sex worker?  Oh wait, they are often naked.

There are no easy answers to how a sex worker can indicate to the brothel manager that they are in danger or distress, so why is CAV prescribing the reliance on a “concealed alarm button”?  Has CAV undertaken a risk assessment that has indicated that the “concealed alarm button” is the most reasonably practicable control measure?

OHS obligations would require brothel owners and workers to assess risks and determine a practicable and effective safety measure for a sex worker who feels in danger.  There is a clear hierarchical assessment process in the OHS laws to achieve a practicable outcome.  This obligation exists on brothels as it does all other workplaces but the Exposure Draft ignores this process and prescribes a solution that seems impractical unless sex services are being provided within arm’s length of a bed head.

Lighting

As part of a sex worker’s safety obligations, they are required to inspect a client for visual signs of a sexually transmissible infection. (Yes, there is not a lot of romance in sex work). The Exposure Draft says:

“If a business is or includes a brothel, the approved manager must ensure that all rooms used for sex work have sufficient lighting to enable sex workers to check for readily evident signs of sexually transmitted diseases.”

The classic stereotype of a room in a brothel having dimmed lighting or a small table lamp with a red shade or scarf over the shade still exists but this level of lighting is likely to be insufficient to look for signs of an STD.

The level of light is one issue but how is a sex work expected to light up a client’s genitals? Some sex workers use electric torches but one Melbourne brothel installed halogen down lights in the rooms’ walls at genital height, so the workers could have an effective control measure rather than a dim and vague look.  Experienced sex workers incorporate this inspection process in the provision of services.

The inspection is a crucial part of the process of the sex worker reducing risks to their own safety.  Brothel owners should be able to show that they provide adequate lighting for a thorough and safe inspection of the client.  Such an obligation exists under the OHS laws requiring the employer to provide a

” a working environment that is safe and without risks to health.”

Escort Work

Escort work can be a high risk activity as has been proven by at least one murder, and many escort agencies have processes in place to reduce this risk but, as with the alarm buttons above, CAV seems to prescribe a mobile telephone as the main control option.  The same problems occur as with the alarm button – is the sex worker always within easy reach of the mobile phone?  And mobile phones are not as simple to operate as an alarm button, particularly if the sex worker is, for instance, with a violent client.

CAV needs to incorporate the reasonably practicable measure and assessment processes in the Sex Work regulations or, better yet, emphasise, or cross-reference to, the application of the risk assessment obligations under OHS law.

Sex Work – Differently

Reading the sex work regulations shows just how out of date they are in relation to the management of workplace safety.  OHS can feel threatening to any business that is dismissive of workplace safety or that has cultivated a narrow understanding of OHS obligations and practices, often in order to minimise the OHS “nuisance”.  OHS could be particularly disruptive to brothels if it is applied in a ham-fisted way with the imposition of prescribed solutions.  OHS should be applied in the manner that was always intended – informed and consultative.

To many brothel owners and their representatives such an argument will seem impractical, naive and perhaps absurd. But this is because they, and most of their industry, are out of step with the safety expectations of workers and the expectations of OHS regulators. As long as brothel owners and sex work regulators continue to focus on sex work as a public health threat, worker safety will not progress.

Owners and regulators must begin to anticipate the safety issues that exist in other Australian workplaces.  As OHS obligations expand to encompass issues such as customer welfare, mental health, wellness, fatigue, and other psychosocial issues, the sex work industry will be pushed further to the fringes of legitimacy where owners seem to be comfortable.

The sex work industry operators, particularly brothel owners and their representatives, have notoriously negative attitudes to OHS matters.  In the past they have denied any OHS obligations to sex workers but have also complained that they cannot find enough workers.

Part of the brothel sector’s challenge is to embrace OHS as a business advantage rather than a business cost or nuisance.  The industry sector may find that it will experience similar benefits to other workplaces – better retention of staff, improved productivity, increased customer loyalty, reduce operational costs and less attention from safety regulators. Increasing the overlap of sex work and OHS is an essential first step.

Kevin Jones

Public comment on the Exposure Draft of Sex Work Regulations is open until 26 February 2016.

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