‘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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What the judge said about Dreamworld, other than the penalty

Some readers raised eyebrows on the article titled “No lessons in the Dreamworld penalty” but the point was that the occupational health and safety (OHS) due diligence and governance lessons were there months ago following the Coroner’s damning findings.

Most of the media’s attention has been on the record size of the financial penalty but looking at Judge Dowse’s decision in the case provides a better understanding of that penalty, the breaches of the safety legislation and the opinions of the judge.

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Hoists and petards

Many on the Conservative side of Australian politics want to see Daniel Andrews, the Victorian Premier, fall, especially over the use of security guards in hotels used to quarantine returning travellers who may have had COVID19. Some of Andrews’ critics are being mischievous by linking the Industrial Manslaughter laws that his government introduced to his, and his Ministers’, accountability for COVID19 deaths linked to the hotels. The latest is Tasmanian Senator Eric Abetz in Federal Parliament.

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The myth of “correct lifting technique” persists

In 2017 Work Health and Safety Queensland (WHSQ) released this advice about reducing the physical risks associated with manual handling:

“The research evidence shows that providing lifting technique training is not effective in minimising the risk of injury from manual tasks.”

So why is “correct lifting technique” still being included in safety procedures and Safe Work Method Statements (SWMS) three years later?

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Work-related mental health remains contentious

This article is about SafeWorkNSW’s recently released Draft Code of Practice for Managing the Risks to Psychological Health, but it is not going to focus on the Code.  Instead the focus will be on the supplementary Explanatory Paper because this presents the rationale for the Code’s contents and, in many ways, is a more useful tool for occupational health and safety (OHS) discussions. However, just as the Code has structural and legislative limitations as part of its Purpose, the Explanatory Paper is a support document for submissions on the Draft Code and therefore has its own limitations.

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No lessons in the Dreamworld penalty

Coomera, Queensland, Australia – January 9, 2018. Exterior view of entrance to Dreamworld theme park, with stairs, building and people.

The iconic Australian theme park, Dreamworld, will never fully recover from the consequences of the deaths of four people after the Thunder River Rapids ride malfunctioned in 2016. The legal journey through the Queensland Courts finished on September 28 2020 with the handing down of a financial penalty of $3.6 million, although others could say the journey ended with the parent company’s, Ardent Leisure’s, plea of guilty, and others may pursue Ardent Leisure for civil penalties, if they can access details of Ardent Leisure’s insurance policies.

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The failure of Leadership on sexual harassment

A picture not of Josh Bornstein. This is Male Champions of Change CEO Annika Freyer in the AFR’s online article

If prominent Australian lawyer, Josh Bornstein does not like something, it’s worth looking more closely at it. Last week on Twitter, Bornstein scoffed at the suggestion that occupational health and safety (OHS) could be a new approach to preventing sexual harassment in the workplace. He tweeted:

“To all those clamouring to support the idea that sexual harassment should be treated as an OHS issue, I have a simple message: Wrong Way, Go Back”

The OHS and sexual harassment nexus appeared primarily in response to a couple of articles (paywalled) in the Australian Financial Review (AFR) based on a leaked report from the Male Champions for Change (MCOC) organisation. Although the report is not publicly released for another couple of weeks, MCOC (hopefully not pronounced My Cock), proposes consideration of applying OHS laws and principles to sexual harassment.

The full report is likely to discuss the mechanics of this further but the advocacy of OHS is less interesting that the admission that MCOC and other leadership-based approaches to reduction and prevention of workplace sexual harassment have failed.

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