Respect at work, safe workplaces remain far from reach for Australian employees

01 Jun 2021 2:00 am

Amid headlines listing COVID numbers & quarantine mishandling incidents across the states, Australia attracted global attention earlier this year with stories emerging from Parliament that detailed sexual harassment, assault, inappropriate behaviour, bullying and unequal treatment of women dedicated to careers in politics. This was hardly a revelation for women in politics, or in any profession, yet vastly uncomfortable for the Australian Government as allegations of who knew what and when, as well as what was done about it, still fester. Making matters worse, the ongoing problem of workplace sexual harassment was already the subject of extensive research and advocacy by the Australian Human Rights Commission.

On 5 March 2020 Sex Discrimination Commissioner Kate Jenkins published the Respect@Work report, which made 55 recommendations for reform to the Morrison Government. In her foreword to the report, Commissioner Jenkins noted that Australia had once been at the forefront of global efforts to tackle workplace sexual harassment. In the early 1970s, women’s organisations began to demand legal and social recognition of sex discrimination. After ratifying the International Labour Organization’s Discrimination (Employment and Occupation) Convention in 1973 and the UN Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’) in 1983, the Australian Government introduced the Sex Discrimination Act 1984, outlawing sexual harassment at work. Over 35 years since then, the Commissioner said that progress has been “disappointingly slow,” with Australia now lagging behind other countries.

From 2003 to 2018, the Australian Human Rights Commission conducted four national surveys on sexual harassment. The most recent survey in 2018 indicated that sexual harassment in Australian workplaces remained “widespread and pervasive.” One in three people reported having experienced sexual harassment in the previous five years, including 39% of women and 26% of men.

Recent developments have highlighted just how prevalent sexual harassment is in the confines of Federal Parliament. The nature of the Parliament as a workplace makes junior staff especially vulnerable to sexual harassment and bullying but can also place powerful perpetrators beyond the reach of direct accountability. The Sex Discrimination Act was designed to cover relationships between employers and employees. This creates difficulty where working relationships are not so clear-cut. Politicians are technically neither, therefore are difficult to directly hold accountable in the face of a complaint. Political offices are intensely hierarchical with the Member, and the Chief of Staff, exercising immense power over junior staff. Under the Members of Parliament (Staff) Act 1984 (the MOPS Act), staff are employed at the pleasure of individual Members and can be dismissed any time, without explanation. Junior staff are often employed while they are still at university, or when they have recently graduated. The significant gap in age and life experience between junior staff and the Member they serve only increases their vulnerability. This is often exacerbated by the long hours of Federal Parliament in session when staff are required to be present until the late hours of the evening on each sitting day. Alcohol with dinner is commonplace for both Members and staff, adding to the factors that may predispose perpetrators to inappropriate behaviour in the workplace.

If staff experience harassment or assault, the question that remains to this day is who can they complain to without fear of retribution? MOPS Act employees can raise issues with the Minister for Finance. This would not, however, prevent them from being immediately sacked by the Member who employs them. Furthermore, they may be framed as a political risk, putting their hoped-for career in politics in jeopardy. Even if findings of fault were made against an MP or a Senator, there is no clear-cut path for their removal from the Parliament short of a successful criminal prosecution. Asked in Question Time whether he might ‘sack’ MPs who have allegedly violated ministerial or parliamentary codes of conduct, the Prime Minister Scott Morrison has repeatedly pointed out that Members of Parliament are chosen by their electorates, and that it is not his place to sack them.

The judiciary and the legal profession share certain characteristics with the Parliament. Judges enjoy similar status to that of Members of Parliament, not only in terms of their elevated professional stature. They may also be considered neither employers of the staff that work for them, nor employees subject to direct sanction in cases of sexual harassment. Judicial staff roles are highly coveted among law graduates. For many, the job may represent the first step in their legal career. A good reference from a Judge may set the staff member up for a prosperous career in law. Occupying this gatekeeper role gives Judges extraordinary power over their staff, making staff particularly vulnerable to sexual harassment.

Responding to findings in a recent case, the Law Council of Australia said that all available statistics and available information suggest that sexual harassment within the Australian legal profession is a prevalent and persistent problem. While women are currently the majority in university law courses, the attrition rate for women lawyers remains high. Many women who leave the legal profession cite experiences of sexual harassment as key motivation. The Law Council said this was damaging and costly for individuals, for law firms, and for the current and future standing of the legal profession.

The Morrison Government’s treatment of Christine Holgate in her role as Australia Post CEO in 2020 has also been characterised as gendered mistreatment of a senior employee. Controversy arose when it was revealed that Ms Holgate had authorised the purchase of four Cartier watches for senior executives who had secured a deal with three major banks in 2019. The same day the news broke (22 October 2020), facing repeated questions from Labor about "the Liberal-appointed Australia Post board, which spent $12,000 of taxpayers' money on Cartier watches", the Prime Minister said that Ms Holgate “should stand aside immediately” and that, “if she doesn't wish to do that, she can go.” In her evidence to the Environment and Communications References Committee’s inquiry into Australia Post, Ms Holgate said that she had lost a job that she had loved because she had been humiliated by the Prime Minister and then bullied by Australia Post Chairman Lucio di Bartolomeo. Ms Holgate alleged that Mr Di Bartolomeo had illegally stood her down at the public direction of the Prime Minister, making her leadership at Australia Post untenable and threatening her mental health. "So do I believe it's partially a gender issue? You're absolutely right I do," Ms Holgate said at the inquiry’s hearings. "But do I believe the real problem here is bullying and harassment and abuse of power? You're absolutely right I do."

The Government’s conduct in the Christine Holgate scandal characterises a phenomenon of senior women losing their jobs in circumstances where their male peers emerge unscathed, with notable parallels in Parliament. In the ‘SportRorts’ affair in 2019, the Government was found to have preferentially awarded sporting grants to electorates held by the Coalition, and to marginal Labor electorates that the Coalition hoped to turn at the 2019 election. Then-Sports Minister Bridget McKenzie was strongly implicated but was believed to have acted at the direction of the Prime Minister’s Office. Yet it was Senator McKenzie who took the fall; she was dropped from the Ministry within days of the revelations coming to public view. In contrast, several of her male colleagues have fared rather better in the face of recent scandals.

For example, Energy Minister Angus Taylor has been involved in no-tender sale of water to the Federal Government in 2017, while holding the position of director of a Cayman Island company shortly before he joined Parliament. A company, Jam Land, in which Mr Taylor has a shareholding, has been implicated in illegal clearing of native grasslands. Finally, it was Minister Taylor’s office that was alleged to have doctored a document regarding Sydney Lord Mayor Clover Moore’s travel expenses. Mr Taylor remains a senior Cabinet Minister.

Another example involves Employment Minister Stuart Robert who was forced to return a Rolex watch valued at $50,000 in 2016 given to him by a Chinese billionaire - a watch ten time the value of the Cartier watches at issue in the case of Australia Post. In 2018, he was forced to repay the Commonwealth $38,000 for excessive home internet bills. Mr Robert, a close friend, and ally of the Prime Minister, seems not to have taken any hit to his career because of these scandals, progressing rapidly through ever more senior ministerial roles.

After some delay, the Government appears to be acting on sexual harassment. On 8 April 2021, the PM joined Minister for Women Marise Payne and Attorney-General Michaelia Cash to announce the Government’s response to the AHRC’s Respect@Work report, more than a year after the report had been published. The Government has agreed to (in full, in-principle, or in-part) or noted all 55 recommendations. Mr Morrison said that sexual harassment was “not only immoral and despicable and even criminal, it denies Australians, especially women, their personal security and their economic security by not being safe at work”.” Attorney-General Cash said sexual harassment was “unacceptable in any context – whether in the workplace or elsewhere”, and that building respectful relationships would be a key focus for the Government in responding to the report.

Meanwhile, the Prime Minister has also promised to reform the Sex Discrimination Act to make Members of Parliament, Judges and Public Servants accountable for workplace harassment. It’s far from clear, however, whether he would support the establishment of an entity with the power to directly remove Members of Parliament and thereby force by-elections.

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