The Victorian Government has pledged to introduce regulations to address psychological risks in workplaces. According to a second consultation paper on psychological health regulations, seen by SafetyAtWorkBlog, the consultation process continues but has been extended, so the new regulations are unlikely before the middle of 2020. This extension would seem a little unnecessary given the work on this hazard already from Safe Work Australia and SafeWorkNSW.
Outside of unionised workplaces, psychological hazards are usually managed as part of the Human Resources (HR) function. HR’s principal reference point is the industrial relations (IR) laws. Occupational health and safety (OHS) overlaps with IR and HR but is usually treated as the annoying little brother following his siblings, who know better because they are older and closer to adulthood.
This situation must change for employers to effectively prevent mental ill-health in their workplaces, but it will require more concessions, or maturity, from Human Resources professionals. Lawyer Alena Titterton hinted at this change in a recent article for the Australian Institute of Health and Safety.
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.
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).
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.
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.
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.”
