‘No Bystanders Rule’​ Bullshit

Guest Post by Dr Rebecca Michalak

About couple of weeks ago, the Australian Financial Review (AFR) featured a piece on a law firm that had introduced a mandatory approach to reporting sexual harassment – referred to as a ‘no bystanders’ rule. 

To be clear upfront, here is my disclaimer – I am not directly commenting on the law firm in question; there isn’t enough information in the articles to make any objective judgements on that front. The references used from the two media pieces are for illustrative purposes only. Call them ‘conversation starters.’

In the AFR piece, the contractual obligation was outlined to involve: 

“…chang(ing) ‘should’ (report) to ‘must’ – so any staff member who experiences, witnesses, or becomes aware of sexual harassment must report it,” 

with the affiliated claim being,

“That shift really reinforces that there is zero tolerance – and there are no confidences to be kept; it needs to be outed – bystanders [staying silent] will no longer be tolerated.

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Behind the OHS words in Parliament

On December 11 2020, Senator Deborah O’Neill (ALP) (unsuccessfully) sponsored a motion that, amongst other things, called on the Government to act on the recommendations of the 2018 inquiry in to industrial deaths and the Boland Review, and to introduce Federal industrial manslaughter laws. That last request will probably never occur under a Conservative government, but does not need to for such laws to be introduced across Australia.

It is good that pressure on important occupational health and safety (OHS) matters is maintained, even if the motion was “negatived”. However, perhaps more interesting was a couple of statements that Senator O’Neill’s actions generated, one of which is deconstructed below.

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Justice delayed is justice denied

The Ballarat Courier is reporting that the prosecution of Pipecon over the deaths of two workers from a trench collapse in March 2018 has been delayed again. It seems the reasons for the delay include renovation works on the courthouse and the workload of the Court. Judge Gerard Mulally‘s decision came the same week as a delegation of bereaved relatives attended Federal parliament in Canberra.

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The black sheep of safety leadership

Western Australia’s Industrial Manslaughter (IM) laws are now in effect. The same arguments for and against were posed in Parliament and outside as they were in Queensland and Victoria, and the Australian Capital Territory well before that. The IM laws will face the same institutional hurdles to application and offer the same, nominal, deterrent effect.

But WA also prohibited insurance policies that cover the financial penalties applied by the Courts. Such policies may make good business sense in managing risk, but they also remove the pain and deterrence intended in the design and application of Work Health and Safety laws.

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A return to the Forgotten Royal Commission

Ministerial accountability. Occupational health and safety (OHS). Leadership. Industrial Manslaughter. These issues have existed in various combinations in various jurisdictions and discussed by many people. At the moment in Australia, this combination has in relation to COVID19 but some of the discussion contains tenuous links and some is masking long held political agendas. Much of it harks back to arguments put to the Royal Commission into the Home Insulation Program.

The latest combination came to my attention from an August 19 article in The Australian newspaper (paywalled) written by business journalist Robert Gottliebsen.

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“Justice Tempered” – ethics and abuse

Recently the Finance Sector Union (FSU) released a small study on ethics and capitalism. The report illustrates how poor corporate ethics and greed created a disregard for the mental health of the finance industry’s workers as well as the financial and mental health of its customers.

The report – “Justice Tempered – How the finance sector’s captivity to capitalist ethics violates workers’ ethical integrity and silences their claims for justice” – was written by John Bottomley, Brendan Byrne and John Flett. Although it is based on detailed interviews with only eight finance sector workers, the authors use these conversations as a catalyst for broader discussions of ethics with extensive cross referencing of relevant, books, publications and, especially, the findings and report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry.

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Lancing the boil of sexual harassment

The Australian Institute of Safety and Health’s online national conference offered some big topics this year. One of the most anticipated was the discussion of sexual harassment in the workplace. Luckily the panel discussion included big hitters such as Sex Discrimination Commissioner Kate Jenkins whose week was about to get a lot busier with the revelations of sexual harassment by Australia’s High Court Justice Dyson Heydon.

The Dyson Heydon sexual harassment accusations, which he emphatically denies, were revealed in an independent investigation for the High Court of Australia. The Justice Heydon case has generated copious media attention for many reasons including his prominence in a politically-charged Royal Commission into Trade Union Governance and Corruption. His sexual harassment offences are awful, but the most startling revelations are not necessarily about one man’s inappropriate actions. Here was an organisational, maybe even a professional, culture that permitted this behaviour to continue unchallenged for many many years. It is this context that, I believe, offers the most significant lessons for the occupational health and safety (OHS) profession and where OHS skills can help others.

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