$290,000 in fines for first sexual harassment conviction under VIC workplace safety laws

A Victorian boss and two related businesses have been fined a total of $290,000 in relation to sexual harassment in the workplace, marking the state’s first conviction of its kind under workplace health and safety laws.

On Thursday, Melbourne Magistrates’ Court fined a boss $40,000 after he was convicted on two charges of failing to maintain a workplace that was safe and without risk to the health of workers.

The court heard the six hospital cafe workers, including some as young as 16 years old, had complained of physical and verbal sexual harassment by the boss.

The boss served as the sole director of Whitelom Investments Pty Ltd, which operated a hospital cafe, and was convicted and fined $110,000 for failing to ensure workplace safety.

He also served as a joint director for Whitelom Pty Ltd, which operated a different cafe at a separate hospital. That enterprise was convicted and fined $140,000.

WorkSafe Victoria said the offending behaviour occurred as far back as 2014, and that while the businesses had policies related to sexual harassment and online bullying, they failed to provide sufficient information to employees hoping to make a complaint.

“The court heard it was reasonably practicable for the boss not to sexually harass staff and for Whitelom and Whitelom Investments to provide staff with an avenue for reporting incidents of sexual harassment, other than to the manager,” WorkSafe Victoria said.

WorkSafe executive director of Health and Safety Narelle Beer expressed her severe disappointment after the ruling.

“It doesn’t get much lower than a boss who preys on his own young workers, some still in school and starting their first jobs, for his own sexual gratification,” she said in a statement.

Separately, a worker in his 20s was also accused of groping a co-worker.

This older worker entered a 12-month diversion plan for “failing to take reasonable care for the health and safety of a fellow staff member,” issued an apology letter, and donated $750 to the Court Fund, WorkSafe Victoria said.

First conviction of its kind as sexual harassment rules ramp up

The conviction has been hailed as the first of its kind under Victorian workplace health and safety laws.

While the Victorian OHS Act does not expressly forbid sexual harassment, it does require employers to take steps to avoid unsafe working environments.

Where work-related sexual harassment poses a physical or mental risk to workers, employees have an obligation under the OHS Act to mitigate and control that risk.

“This case shows why it is essential that employers not only set clear standards but have policies and procedures to ensure they can prevent, respond to, and report such behaviours,” De Beer said.

The convictions and fines come after a concerted effort by state and federal lawmakers to bolster workplace protections and stamp out sexual harassment on the job.

In 2022, the Victorian government accepted the recommendation from the Ministerial Taskforce on Workplace Sexual Harassment that sexual harassment ought to be treated as a workplace health and safety issue, and pledged $7 million over three years to assist enforcement by WorkSafe.

After amendments to the federal Sex Discrimination Act, December 2022 saw the commencement of a positive duty on employers to eliminate workplace sexual harassment, sex discrimination, sex-based harassment, and other acts creating a hostile working environment on the basis of sex.

That positive duty was a key recommendation of the landmark Respect@Work report, which said employers should take reasonable and proportionate measures to stamp out sex discrimination, harassment and victimisation in their workplaces.

Worker protections will ramp up from December 12, 2023, when the Australian Human Rights Commission will gain the power to monitor compliance with that positive duty.

On the federal level, sexual harassment in the workplace has been expressly prohibited by the Fair Work Act since March 6 this year.