Lessons Learned From the Sexual Assault/Misconduct Revelations in Federal Parliament

The recent revelations of alleged criminal conduct and misconduct in the Federal Parliament directed towards women has had devastating ramifications for those involved.

Timing is always crucial, and the timing of these revelations in the context of the recognition of the work done by Grace Tame (as an activist and advocate for survivors of sexual assault) and Chanel Contos (whose work has highlighted the prevalence of sexual assault in our schools) has brought into renewed national focus issues such as gender equality and the safety of women in our society.

The extent of the issues revealed in the Federal Parliament highlights the important role that businesses will play in this national discussion. Not just because of the amount of time that people spend in their workplaces, but also because of their ability to set the standard of how we expect people to interact in our society.

By paying close attention to the national conversation about these issues, businesses can learn some fundamental lessons about how to address these behaviours in the workplace.

Implement an egalitarian workplace culture

Workplace culture is a very abstract concept that can be very difficult to measure and change in a meaningful way.

In the context of the risk that an employee is subjected to a form of sexual assault or harassment, it’s critical to consider whether the management structure and workplace culture encourages or discourages workers from coming forward and making a complaint.

Our Federal Parliament is a very hierarchical workplace. Broadly speaking, the Prime Minister occupies the highest position in the hierarchy, followed by cabinet ministers and then backbenchers.

Ministerial staff are employed pursuant to the Members of Parliament (Staff) Act 1984 (Cth) (‘the MOP Act’). In accordance with section 5 of the MOP Act, the terms and conditions of an engagement of a person under the act are determined by the Prime Minister. However, as a matter of practice, it is usually the minister who elects to employ the person who determines the nature and conditions of their employment.

The fact that a ministerial advisor’s employment is so dependent on the minister they work for serves as a significant disincentive to make a complaint about other persons conduct in the workplace.

Hierarchical structures also tend to encourage poor behaviour towards persons considered to be “lower” in the structure.

By moving towards a “flat” management structure, workplaces can encourage a collegiate and egalitarian workplace culture in which people feel confident to be able to speak up when they observe misconduct or are subjected to it.

Diversity matters

The cornerstone of any work health and safety strategy is to be able to identify risks in the workplace.

At the moment, only about 25% of Liberal party MPs across state and federal parliaments are female. No statistics are available in respect of the diversity of ministerial staff, but it is widely accepted that it is a “male-dominated” workplace. Even taking into account that other parties might have achieved a greater level of gender parity, Federal Parliament is clearly not representative of the broader community in this regard.

The issue with having a “homogenous” leadership group is that a business has a less diverse range of expertise, qualifications, and experiences to draw on in identifying risks to the business and developing strategies to manage those risks.

It wouldn’t make sense for a large publicly listed corporation to only appoint directors with accounting experience because it would leave the board devoid of any legal, business management, or industry-specific expertise. Clearly a leadership group that lacks any meaningful contribution from female leaders will not be as effective in identifying and managing risks to its female workers.

Suppose a business’s leadership group does not adequately reflect its workforce. In that case, the business should identify whether any barriers exist that prevent the business from cultivating a more diverse leadership structure.

Misconduct has serious consequences

Willett v State of Victoria

The worker, a police officer, alleged she was bullied after being moved into a new unit. The alleged conduct included:
– conversations concerning the manner in which the police officer was successful in obtaining the position and about her pregnancy;
– the use of the ‘black widow’ epithet and other offensive conversations;
requirements to carry out alternative duties while pregnant, which the police officer did not agree to;
– exclusion from social club activities;
– disadvantageous workstation and rostering arrangements and requirements to ‘act as messenger’; and
– being ostracised in the workplace.

The Court found that the police officer suffered an injury due to the employer’s negligence and awarded her damages in the amount of $250,000.

Be accountable

It is trite to point out that when people engage in misconduct and don’t face any consequences, they are more likely to continue to exhibit those behaviours.

As more and more allegations of sexual misconduct in the Federal Parliament come to light, it is clear that there has been an abject failure to hold people accountable for misogynistic behaviour and/or sexual misconduct.

Failing to address misconduct creates a further issue that when a business finally does address the misconduct, it can be seen as capricious and unfair. So not only does the business have a culture that condones this behaviour, but the longer it takes to address the behaviour, the harder it can be to address it.

Full Bench of the Fair Work Commissioner orders reinstatement of employees found to have disseminated pornography in the workplace!

Although the decision was later quashed in the Full Court of the Federal Court, the decision of the Full Bench of the Fair Work Commission in B, C, and D v Australian Postal Corporation t/as Australia Post to order the reinstatement of employees despite finding that they had engaged in misconduct, illustrates the difficulties that can arise when employees are not held accountable for their behaviour.

In this case, three employees admitted to using their work email accounts to receive, store, and send pornographic photos and videos. This conduct came to Australia Post’s attention due to the installation of new software to monitor the use of the business IT systems.

Australia Post conducted a disciplinary process involving 40 employees for inappropriate use of the business’s IT systems. A range of sanctions were used, including termination of employment depending on the identified misconduct’s seriousness.

The Full Bench went on to state that:

A large volume of material of the sort subsequently identified as unacceptable had been circulating among a large number of employees including, as the Commissioner found, “individuals who fell within a very broad categorisation of those with managerial or supervisory positions”. As recipients, those individuals could see that the emails they were receiving were, more often than not, being copied to other employees. Over an extended period, no action was taken by any of those individuals. The primary facts found by the Commissioner call for a finding that the DLC was a workplace where there was a culture of toleration.

The issue was whether the “culture”, in combination with the other mitigating factors applicable to each of the Appellants rendered the dismissal harsh, unjust or unreasonable – whether the culture, and the historical absence of monitoring and enforcement of policy within the DLC, rendered it harsh to dismiss an employee without any specific warning for breaches of policy of a type that had been widespread and unaddressed for an extended period.”

Have a robust complaints procedure

Workers need to have confidence that any complaint will be dealt with expeditiously and fairly. Having an appropriate policy in place and sticking to that policy is the best way to create this confidence.

In circumstances where the complaint is more serious or involves someone in a more senior position, it is important to consider whether the business needs to engage a third-party expert to investigate the complaint. This is something that should be set out in the policy.

While any decision regarding the outcome of the investigation will need to be made by the business, when it’s reasonable to do so, arranging for an independent third party to investigate the complaint and present the findings to an appropriate decision-maker will assist the process.

Implementing and reviewing such a policy also forms an important part of officers’ due diligence obligations under the model work health and safety legislation.

Allowing an employee to confront their accusers publicly is not best practice!

Jenny Yang v FCS Business Service Pty Ltd

The Applicant (Ms Yang) was employed as a managing accountant by the Respondent.

The Respondent’s director Mr Shen was allegedly told by staff at the workplace Christmas Party that the Applicant had circulated rumours that he was having an affair with one of his employees.

Mr Shen discussed this rumour with several other employees and, in order to determine if the Applicant had spread the rumours, decided to have a meeting with the Applicant.

The Applicant denied spreading the rumours and requested that a meeting be held with all staff present, where she hoped to confront her accusers. During the meeting, the staff were asked to raise their hands if they heard the rumours spread by the Applicant. No hands were raised. The staff were then required by secret ballot to answer YES or NO to the same question. The ballot indicated that 3 staff members had heard the alleged rumours.

Insecure employment

Consider whether the employment conditions of your workers act as a disincentive to make a complaint.

Pursuant to section 9 of the MOP Act, a consultant will lose their employment if the relevant minister dies, ceases to hold office as a minister, or ceases to administer the relevant Department. This creates a very significant disincentive to make a complaint about a minister, as a ministerial staff member’s employment is directly connected to the success (or lack thereof) of the minister they are employed to serve.

Likewise, in the broader workforce, workers in insecure employment are less likely to make complaints or raise issues if they feel it will place their employment at risk. For example, a highly casualised workforce presents a risk to the business. Due to the very nature of the employment relationship, any mistreatment may go unnoticed by the business because the worker fears losing their job if they make a complaint.

If the officers in the business do not know there is an issue, then the issue cannot be addressed and may ultimately result in a significant or catastrophic outcome.

Conclusion

By following recent events in Federal Parliament, and more broadly in the community, there are salient lessons out there for businesses about the risk of a workplace culture developing that is permissive of misconduct.

The ramifications for both the business and the individuals involved can be catastrophic when misconduct is not addressed.

For large businesses with sophisticated HR and WHS expertise in-house, it is well worth requesting a review of the relevant policies and procedures to determine whether they are capable of dealing with the kind of conduct that has been alleged in the Federal Parliament. In particular, any policy regarding complaints of serious misconduct will need to consider what ought to occur when the conduct is of a criminal nature.

For smaller businesses, it can seem overwhelming trying to manage the business and compliance with WHS and HR issues. If your management team does not have the experience and/or expertise to address these issues, consideration must be given to seeking assistance from an expert.

Getting advice from a WHS/HR expert should be viewed no different to seeking expert advice from an accountant about your tax obligations!

For more information, please contact:
Patrick Walsh

Patrick Walsh
Director
p.  +61 8 8124 1941
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this report, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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