Anonymous reporting in Victoria’s legal sector

Industry groups and employers should accept the reality of their occupational health and safety (OHS) duties, especially concerning sexual harassment. Recently the Victorian Legal Services Board (VLSB) launched an online complaints service for lawyers. According to the September 16, 2021, media release, the service:

“…enables both targets and witnesses of sexual harassment to report what happened, where, when and to whom. Reporters can provide as much or as little detail as they feel comfortable”

The attraction of this service is that one would expect such a service from a legal services board to be spot on with its legal and privacy, and human rights obligations. But then, that comes from a non-lawyer.

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Guidance can help but change needs a challenge

The Australian Chamber of Commerce and Industry (ACCI) has released a guide for employers on managing sexual harassment in workplaces. It contains a lot of helpful information, but it also illustrates the self-imposed limits that business has on preventing workplace psychological hazards. To a lesser extent, it is downplaying the preventative role of occupational health and safety (OHS).

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Off-centre perspectives can offer great potential

The Australian government has failed to follow through on its early promises to provide a framework for employers to prevent and reduce sexual harassment in their workplaces. This failure is being interpreted as revealing something about employers’ attitudes to occupational health and safety (OHS) and their own legislative duties.

Employers (and other groups on non-OHS issues) who look to the government for guidance on issues that already have legislative requirements are looking to avoid the social and legal obligations that have usually existed for years. Sexual harassment is an excellent example of a workplace matter getting some serious attention regardless of the government’s inaction. A recent podcast by Maddocks lawyers Catherine Dunlop and Tamsin Webster is part of that attention.

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“Too little, too late” but potential in primary prevention

On Australia’s Women’s Safety Summit, Wendy Tuohy contemplated, in The Age, after the first day;

“It may turn out to be too little, too late, but if there’s real commitment behind Morrison’s lines, we could conclude it’s a start.”

There are few signs of Prime Minister Scott Morrison’s commitment. Women will continue to work in companies and workplaces where they are at risk of psychological harm from sexual harassment and physical harm from sexual assault. Occupational health and safety (OHS) laws offer a harm prevention option that nobody seems keen to consider.

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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.”

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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.

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The OHS agenda of the Australian Labor Party

Given that the protection of worker health and safety will gain more attention and support under progressive parties and governments, the release of the 2021 National Platform for the Australian Labor Party (ALP) is notable. The 2021 document, unsurprisingly, focuses on the role of Health and Safety Representatives, appealing to its financial and political trade union base as major influencers on occupational health and safety (OHS).

This article will focus on the chapters in both the 2021 and 2018 platform documents related to safe and healthy workplaces, although there are OHS-related issues dotted throughout both documents.

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