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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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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The PM expects Australian workplaces to be “as safe as possible”

Prime Minister Scott Morrison has set the occupational health and safety (OHS) bar unachievably high for Australian businesses.

Morrison is embroiled in a scandal about an alleged rape in a ministerial office, his knowledge of and response to it, and his government’s duty of care to political employees. Below is his response to this question from a journalist:

JOURNALIST: “What is your message to young women who might want to get into politics and see this and are just horrified by it. What’s your reassurance to them about getting involved in the Liberal party or other parties? “

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Workplace wellbeing, mental health and cake

Recently Australians Jason van Schie and Joelle Mitchell released a podcast series called Psych Health and Safety focussing on psychological health and health promotion at work. Recently Carlo Caponecchia spoke on the podcast about mental health at work and the soon-to-be-released International Standard 45003 for managing psychosocial risks at work, a “child” of ISO45001 the occupational health and safety (OHS) management standard.

Caponecchia was asked to outline the statistics for workplace mental health in Australia. He stated that the official figures are that 9% of workers compensation claims related to mental health at work and that claims for this type of injury have increased substantially since the year 2000. However, he also added a caveat to those figures, a caveat that should apply to all official OHS statistics:

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Norms and culture continue to impede change in Australia’s transport sector

Australia’s heavy vehicle transport industry has been involved in arguing about workplace health and safety for decades. It is also one of those issues that have been largely dominated by anecdotal evidence, as shown by the recent Australian Senate Committee hearings into the “Importance of a viable, safe, sustainable and efficient road transport industry“, much to the detriment of the occupational health and safety (OHS) of the drivers, the public safety of other road users and the families of those who die in road incidents.

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Odd sexual harassment guidance

Safe Work Australia has released an important national occupational health and safety (OHS) guidance called “Preventing workplace sexual harassment.” The advice included is very good, but the presentation is so plain and vanilla as to be unattractive – unattractive in that there is little to encourage anyone from reading what is very important information. No images, no flowcharts, no graphics, no infographics but perhaps most importantly – no case studies.

This is not to suggest that SWA guidance needs to look like a “Dummy’s Guide”, but readability is more than grammar, understanding comes from more than just information.

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