Category: mental-health

A closer look at the positive duty to prevent sexual harassment

The big occupational health and safety (OHS) news in Australia has been the release of the federal government’s response to the Respect@Work report on sexual harassment in Australian workplaces. And the biggest issue in that response seems to be the government’s lack of enthusiasm for a major recommendation of Sex Discrimination Commissioner Kate Jenkins, the inclusion of a positive duty in the sexual discrimination legislation. Many lawyers have been asked for their opinions on the government’s response, but very few OHS professionals.

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OHS is “… more what you’d call ‘guidelines’ than actual rules.”

Occupational health and safety (OHS) may not be a common subject in the mainstream media but there is plenty of political discussion on the topic in Australia’s Parliament.

The current (conservative) federal government seems very slow to accept and respond to recommendations from official inquiries that it sees as a secondary political priority, such as sexual harassment and workplace health and safety. The hearings of the Senate’s Education and Employment Legislation Committee on March 24 2021, were, as usual, enlightening.

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The duty of care to “others”

In 2019 a man took his own life while being detained in the Villawood Immigration Detention Centre. At the time media reports said that the death was being referred to the appropriate authorities and the New South Wales Coroner.

On March 10, 2021, Comcare charged:

“The Department of Home Affairs and its healthcare provider (IHMS) ……with breaching Commonwealth work health and safety laws over the death of a man in immigration detention.”

Such an action against a government department under occupational health and safety (OHS) was always possible, as SafetyAtWorkBlog and others discussed in 2016.

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Wage theft and work health and safety

Many large and small Australian businesses have been exposed as underpaying staff.  This exploitation is gradually being addressed in law firms, according to a report this morning in the Australian Financial Review (paywalled). In the context of occupational health and safety (OHS) though, the description in the first paragraph of “crippling workloads” is an important mention of relevance.

Reporter Hannah Wootton and David Marin-Guzman do not focus on the OHS and mental health aspects of these workloads in this article as underpayment is the focus, but they touch on OHS matters later when mentioning the Hayne royal commission:

“The royal commission sparked reports, including to workplace safety regulators, of crippling work hours that put lawyers’ health at risk and resulted in many sleeping at work.”

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What Australia can learn from other Parliaments about sexual harassment and assaults

Brittany Higgins alleges that she was raped in her employer’s office by a work colleague after a night of drinking. Since mid-February 2021, other women have claimed to have been sexually assaulted in Parliament. The Attorney-General, Christian Porter, is taking some leave after revealing himself to be the person behind historical rape allegations. At the moment, Australian politics is wrapped up in itself over these scandals. Still, similar scandals have happened in other Parliaments, and the responses to these may provide guidance for Australia.

A small survey of female parliamentarians and staff in Europe in 2018 found the following

▪ 85.2 per cent of female MPs who took part in the study said that they had suffered psychological violence in the course of their term of office.
▪ 46.9 per cent had received death threats or threats of rape or beating.
▪ 58.2 per cent had been the target of online sexist attacks on social networks.
▪ 67.9 per cent had been the target of comments relating to their physical appearance or based on gender stereotypes.
▪ 24.7 per cent had suffered sexual violence.
▪ 14.8 per cent had suffered physical violence.

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Now there is too much mental health information, and it’s like toothpaste

Australia is experiencing a boom in occupational health and safety (OHS) information about work-related psychological harm, including sexual harassment at work. This level of information is long overdue, but a consequence of this “boom” is that employers can be very confused about which information to use and which source they should trust or even what relates to their specific circumstances, especially after years of denying there is a problem.

Putting on my consultant hat, I would advise any State-based organisation to comply with the OHS guidances issued by that State’s OHS regulator. If a national company, look towards the guidance of Comcare or Safe Work Australia for the national perspective. The challenge is greater for companies that operate in multiple States, but these have been rumoured to be less than 10% of Australian businesses. If multi-State, they should be big enough to have the resources for OHS compliance.

However, some State-based mental initiatives have evolved into a national platform.

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WorkSafe Victoria intends to change the farm safety culture

WorkSafe Victoria has launched a new campaign about health and safety on farms. Safety and health in this sector needs constant promotion as high rates of death and serious injury persist. The latest video campaign deserves a broad audience and hopefully is pushed heavily on television in rural areas and through local newspapers (what’s left of them) as these media continue to be major influences.

Farming is one of the hardest industries in which to achieve tangible change in occupational health and safety as discussed only recently on this blog. This latest campaign is fresh and looks good but the message is confusing if, as WorkSafe Victoria claims, the aim is to affect cultural change in the agriculture sector. The video takes a narrow focus on the male farmers implying they are the major cause of injuries. (Gender is a sensitive issue in farming, even though the statistics show older male farmers continue to be at high risk of injury) There is a little bit of “blame the worker” which is contrary to most strategies for cultural change.

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