Today’s correspondent says:

Your recent comments regarding “Referring complaints of sexual misconduct to police or AHPRA (May 20, 2023)” were thorough, useful and provided great clarification.

With reference to your post “NSW Ambulance fined for breach of Work Health and Safety legislation (May 3, 2023)” are there responsibilities that have not been met if the sexual misconduct complaints were to have occurred in NSW? Would this be similar across all States?

What is the Work, Health and Safety responsibilities of any organisation to provide a work environment free of sexual touching and harassment and especially if historical complaints already exist showing a pattern of behaviour from an individual?

In NSW a recent survey of members of the Health Services Union may uncover many aspects of this problem in that State. The issue of sexual harassment in Ambulance Victoria is well documented with compensation to victims pending and an apology issued by the organisation.

For the situation (or hopefully the past situation) in Ambulance Victoria see Victorian Equal Opportunity and Human Rights Commission, Independent Review into Workplace Equality in Ambulance Victoria (2021) (VEOHRC Report). 

That report says (Vol 1, p. 235):

The Commission asked survey respondents who reported sexual harassment to identify the types of unwelcome sexual behaviour that they had experienced. Among the 330 respondents, the five most commonly reported behaviours were:

• sexually suggestive comments or jokes (83.3% or n=275)

• unwelcome touching, hugging, cornering or kissing (44.5% or n=147)

• intrusive questions about your private life or physical appearance  (38.8% or n=128)

• staring or leering (35.2% or n=116)

• inappropriate physical contact (27.3% or n=90)

Providing a workplace that is ‘free of sexual touching and harassment’ is required by both anti-discrimination legislation (in NSW, the Anti-Discrimination Act 1977 (NSW) Part 2A) and by work health and safety laws (in NSW, the Work Health and Safety Act 2011 (NSW)).

With respect to the Anti-Discrimination Act, an employee commits a criminal offence if he or she subjects another employee to sexual harassment (s 22B(2)).  By having a workplace that creates unfavourable conditions for an employee because of their sex, trans-gender status or marital status the employer may also be guilty of an offence (ss 25, 38C and 40 respectively). If a person is being harassed or being denied opportunities unless they ‘put up’ with unwelcome behaviour can be attributed to the employer would depend on the offender’s status. For example, if one paramedic makes unwelcome comments to another, that paramedic may commit an offence (s 22B(2)) but it may be a step too far to say the employer has harassed the employee. If, on the other hand, the person making inappropriate comments, or touching etc is a supervisor, and the employee ‘… felt I had to ignore [it] in order to ”fit in”, despite the fact that it didn’t sit well with me’ and felt ‘forced to put up with uncomfortable sexual innuendo in order to prevent my career being ruined …’ (VEOHRC Report, p. 237) then that behaviour could, arguably be attributed to the employer. In those circumstances the employee could argue that the employer, represented by the supervisor, is ‘denying the employee access, or limiting the employee’s access, to opportunities for promotion’ unless they put up with behaviour that a person of a different sex would not have to put up with (Anti-Discrimination Act 1977 (NSW) s 25(2)(b)).

The Work Health and Safety Act requires an person conducting a business or undertaking

… must ensure, so far as is reasonably practicable, the health and safety of–

(a) workers engaged, or caused to be engaged by the person, and

(b) workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

A workplace with sexual harassment and the identified consequence of that behaviour (and see again VEOHRC Report) about why workplace equality matters (Vol 1, [3.1.1] and the potential impacts on individuals and the organisation ([5.2]) is not ensuring the health and safety of its staff.

But no organisation including NSWA turns a blind eye to these behaviours. I have been provided with an email from Craig McGlynn, A/Executive Director People & Culture, NSW Ambulance dated 11th July. He says:

I take this opportunity to remind you that NSW Ambulance has a comprehensive system in place for investigating an allegation of sexual harassment by a colleague or a member of the public, including:

Where there are policies and procedures in place but a supervisor continues to misbehave, particularly when it is the supervisor’s job to implement the policies then it is much harder to attribute that behaviour to the employer.

As for work health and safety the PCBU’s obligation is to take ‘reasonable’ measures to prevent the conduct. What is reasonable requires consideration of (Work Health and Safety Act 2011 (NSW) s 18)

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about–

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

Minds may differ on whether any particular response meets the test of being ‘reasonable’ and ultimately that is what courts are there to decide, remembering that in any criminal prosecution the case must be proved ‘beyond reasonable doubt’

Conclusion

The question I was asked was

What is the Work, Health and Safety responsibilities of any organisation to provide a work environment free of sexual touching and harassment and especially if historical complaints already exist showing a pattern of behaviour from an individual?

The answer is the employer or PCBU has to ‘ensure, so far as is reasonably practicable’ a workplace free of sexual harassment. What is ‘reasonably practicable’ is open to debate.  Where ‘historical complaints already exist [suggesting or alleging]… a pattern of behaviour from an individual’ then that is relevant to considering s 18 ie its relevant to questions of the likelihood of the risk and what is known about the particular risk.  But what is reasonable also has to take into account duties to employees to investigate and provide procedural fairness to employees when investigating and acting on allegations of misbehaviour (s 18(d)).

Comment

I infer that the correspondent who wrote this question also posed the question that lead to the post Referring complaints of sexual misconduct to police or AHPRA (May 20, 2023). I infer that they believe an ambulance manager has been the subject of a number of complaints and they are concerned that person remains in their job. I remind readers that this is not the place for legal advice and I cannot comment on specific cases.  The legal principles are set out above, but what action is required would require detailed knowledge of the facts – what complaints have been made, what has been the response of the service, what has been the response of the individual, what is the attitude of the complainants etc.  There is no way I can know that and even if I did I would not seek to give advice to NSWA or any complainant on what they should do.  Nothing I write could be used to say to NSWA – “you have a legal obligation to sack or suspend this person”.  If anyone thinks there is a breach of the laws discussed in these posts they should take it up with their trade union, the Anti-Discrimination Board or WorkSafe NSW.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.