Duty of Care – SafetyAtWorkBlog

OHS seen as not up to the task on sexual harassment

Then submissions to the Senate Committee inquiry into the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill reveal some interesting perspectives on occupational health and safety (OHS) from Australian businesses and other organisations.

The Kingsford Legal Centre says this of the work health and safety approach to sexual harassment:

“WHS law is designed to manage work health and safety risks which are many and varied and are distinct from gendered violence and discrimination. Many cases of sexual harassment and sex discrimination are not an easy fit for the WHS framework. WHS legislation is state and territory based and relying on WHS legislation does not address the Commonwealth’s international human rights obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). In also not naming the gendered nature of the issue, WHS law risks overlooking keys to prevention and culture change which are central to the Respect@Work Report.
While WHS processes may in some cases run parallel to complaints of discrimination or sexual harassment, there are fundamental ways in which WHS law differs in the management of claims. Most obviously there is not a clear process for people who have experienced discrimination and harassment to be allowed to speak through a conciliation process about the impact of such behaviour on them and seek specific forms of redress. We know from our research in this regard that this process is important in resolving complaints impacting on human rights and reflects a complainant-centred process. WHS law does not approach injuries in such a way.”

Forces amass against the prevention of workplace sexual harassment

Most of Australia’s media has cooled its reporting on the sexual harassment law reforms championed by the Sex Discrimination Commissioner, Kate Jenkins. Partly this relates to revised laws being proposed in Parliament later this year and that are currently subject to a Senate Committee Inquiry. The media coverage on the proposed laws and the senate inquiry has been thin with only the Australian Financial Review (AFR) giving it any serious attention.

However, research reports on sexual harassment in Australian workplaces continue to appear and the transcripts of the Senate Committee’s public hearings are publicly available, as are the submissions made by, primarily, business and law organisations. What is missing is the involvement of the occupational health and safety profession.

Dehumanising OHS

A recent online article started:

“We all deserve to leave for work each day, knowing that if we say goodbye to our loved ones, it’s not goodbye forever. And when we’re at work, our laws should protect us and keep us safe.”

It contains a heartfelt sentiment but also perpetuates a myth. Occupational Health and Safety (OHS) laws do not protect us or keep us safe. They establish a socio-legal framework that needs to be enforced by a combination of employers, workers, Regulators, Health and Safety Representatives, bystanders, the public, the government, relatives, and others, depending on the work situation at the time.

Just as “mindful” has a different subtext to “careful” so we need to avoid empowering laws beyond their design and dehumanising the OHS process. We need to remember that people are integral to the enforcement of OHS laws, duties and obligations for if we remove people from this activity, OHS becomes a responsibility of everyone and no one.

Kevin Jones

BTW, the article is a lovely profile of Lana Cormie

“Careful” being replaced by “Mindful”

American television drama Hill Street Blues almost always included a pre-work briefing with the senior officer concluding with a “Let’s be careful out there”. Whether the officers paid attention to this all the time is debatable, but it was an important statement that revolved around Care.

In occupational health and safety (OHS) briefings and political speech, Care is often replaced by alternative words, particularly “Mindful” – “Let’s be mindful out there”. Does this mean the same as Careful? Why replace the word Care? Are we embarrassed by Care? Does Care promise more than we can deliver?

OHS is based on a principle of the Duty of Care. One of the most useful discussions of this principle is the 2005 West Australian guidance on this. It says:

COVID, Blame and Employers

Australia has not had a crisis in public health to the magnitude of COVID-19 for a very long time. It is understandable for people to look at a public health crisis through the reference point of their own experience and profession. There is an overlap between the management of the pandemic and occupational health and safety (OHS), but that overlap should not be inflated.

Jason Thompson wrote an excellent (and recommended) article on COVID-19 and blame for the University of Melbourne titled “Get Ready for a Shift in the COVID Blame Game”. I had the chance to put a few questions to him about the article.

Political attack falls flat

There is an animosity between the Liberal Party in Victoria and some of its sympathetic media and WorkSafe Victoria, particularly aimed at the CEO, Colin Radford. Most of this has been played out in the mainstream media, but recently, in the Public Accounts and Estimates Committee (PAEC) of the Victorian Parliament, the Deputy Chair, Richard Riordan (Liberal), slagged off WorkSafe and Radford over Victoria’s Hotel Quarantine Program. His attack was ineffective and showed a lack of understanding of WorkSafe’s enforcement role and occupational health and safety (OHS) laws.

This performance overshadowed some of the points being made by the Minister for Workplace Safety, Ingrid Stitt (ALP), in the hearing. However, she omitted the upcoming imposition of on-the-spot fines.

Law firms are a focus for sexual harassment reforms

This year coverage of The Australian newspaper’s annual Legal Partnership Survey has focused on the number of women partners in law firms. This increase has generated discussion on sexual harassment, which has revealed some of the activities that law firms use to prevent the psychological harm (and brand damage) from sexual harassment; many strategies that are already very familiar to the occupational health and safety profession

Sex Discrimination Commissioner Kate Jenkins has been paraphrased in the article (paywalled), saying

“Non-disclosure agreements should be used to protect people who have been the subject of sexual harassment, rather than to reduce brand damage to organisations…..”
[link added]

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