Extreme cases of workplace sexual harassment can also be found to be common assault under NSW criminal law, warns this author
We constantly hear that sexual harassment is rife in many Australian workplaces – the police force for example, and the legal profession too are just two professions that have hit media headlines in recent weeks because of allegations of harassment by high-profile men in positions of seniority.
No industry it seems, is immune, and not only are women the victims of sexual harassment, many men are too. However, one of the worst industries for sexual harassment is the hospitality industry. Recently, a Sydney Bar Manager declared that enough is enough, when she made a complaint to police for slapping her bottom.
There are no excuses
At the time, the 41-year old man from South Sydney reportedly turned around to the manager of a bar in Sutherland, 22 year old Annabel Bassil and said: ‘Oh, it’s fine, I’ve got a wife. I’m just having fun’.
But Ms Bassil felt differently. And she made a complaint to police the next day, leading to a charge of common assault. Ms Bassil was of the view the man had no right to touch her, or anyone, in any circumstances without permission.
The man eventually pleaded guilty to the charge in court.
The offence of common assault in NSW
Common assault is defined by section 61 of the Crimes Act 1900 (NSW).
In NSW, the offence of common assault does not necessarily require any physical contact at all. Actions which can be considered common assault include:
- Striking another person without causing any, or any significant, injuries,
- Threatening immediate violence in such a way the other person believes the threat will be carried through; for example, saying ‘I’m gonna punch you in the face’ while raising a fist and/or moving towards the other person and/or displaying a threatening or angry demeanour,
- Striking at a person with a fist or object, whether or not contact is made,
- Throwing an object towards a person, whether or not contact is made,
- Spitting at another person, whether or not contact is made, and
- Pushing an animal or other conveyance that the other person is on and thereby causing the other person to fall off.
The court heard that the man, who was on the phone when he assaulted her, had just found out his NRL team, the South Sydney Rabbitohs, had won and said he was “excited”.
He pleaded guilty to a charge of common assault and was granted a section 10 dismissal, meaning the man was found guilty but there was no conviction or sentence.
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High levels of sexual harassment
A 2018 survey by Australian Human Rights Commission found that up to 39 per cent of women face sexual harassment in the workplace.
But the numbers are worse in hospitality, where up to 89 percent of women have reported sexual harassment in the past five years.
These numbers are backed up by a 2017 dedicated industry survey conducted by workplace union body United Voice which found that 86 percent of respondents have felt unsafe, uncomfortable or at risk in their workplace.
Three-quarters said they had experienced unwanted sexual advances and 69 per cent inappropriate touching (69 per cent). Almost nine out of 10 reported sexist remarks – 85 percent reported comments about their body and 84 percent reported receiving comments with sexual innuendo.
Horrifically,19 per cent said they had been sexually assaulted.
Many of these workers are in their first jobs
What’s particularly abhorrent about these statistics, and some of the anecdotal evidence from the survey is that a large percentage of this workforce are young people having their first work experience.
As the survey found, most respondents were younger than 34 with about half (49 per cent) younger than 24. Typically, those who work in the hospitality industry are teenagers with part-time jobs at fast food places or cafes. Some are students at University making cash in their spare time by working in pubs or as wait staff for functions like weddings and corporate events. Some are travellers.
It’s disturbing to think that for many of these young people, this is their first experience of the workplace. If they’re not on the receiving end of sexual harassment themselves, then they would most certainly be witness to it.
READ MORE: How to proactively stamp out workplace sexual harassment
How do we turn the tide?
So what is it about hospitality that seems to perpetuate such alarming levels of sexual harassment
Is it that by and large it’s seen as a ‘fun’ industry full of young people and the rules and regulations are not taken so seriously? Is it perhaps because the majority of employees (more than 60%) are casuals and because labour is easy to come by, positions can be filled quickly should someone choose to leave? Is it because with the decrease in penalty rates over the past few years, more and more hospitality workers are accepting less in their pay packets and becoming more reliant on tips, which creates a culture that customers can behave badly so long as they tip and workers must take the view that the ‘customer is always right?
Sexual harassment is illegal
Sexual harassment is against the law and has been for 25 years. Everyone has a right to feel safe in their place of employment.
The Sex Discrimination Act 1984 (Cth) defines the nature and circumstances in which sexual harassment is unlawful. It is also unlawful for a person to be victimised for making, or proposing to make, a complaint of sexual harassment to the Human Rights and Equal Opportunity Commission.
Examples of sexually harassing behaviour include:
- unwelcome touching;
- staring or leering;
- suggestive comments or jokes;
- sexually explicit pictures or posters;
- unwanted invitations to go out on dates;
- requests for sex;
- intrusive questions about a person’s private life or body;
- unnecessary familiarity, such as deliberately brushing up against a person;
- insults or taunts based on sex;
- sexually explicit physical contact; and
- sexually explicit emails or SMS text messages.
In Australia figures show that industries which tend to be male dominated still pose a significant threat to women, and that in many cases victims simply put up with the behaviour for awhile, but will eventually leave their jobs.
What’s the solution?
While many potential solutions have been thrown around in various industries, no one has encountered one that put an end to workplace sexual harassment once and for all.
But perhaps we can learn from one example from Florida in the US.
The Coalition of Immokalee Workers, representing female tomato pickers, fought to have a safe complaint system written into their labour agreement , and called it the Fair Food Program. In addition to better pay and improved working conditions, workers insisted on a way to address sexual harassment. An independent body was created to be the arbiter. Complaints take some time to investigate and address, but there are real consequences for farmers who don’t take action against employees found to be perpetrators of sexual abuse.
By also convincing some of the US’ biggest tomato purchasers (for example McDonald’s, Walmart, Whole Foods) to only buy produce from fields that were part of the Fair Food Program, which ensures workers are treated justly, the consequences for farmers who don’t take action is that they won’t be part of the Fair Food Program, and therefore cannot sell to the large tomato buyers. Their market disappears.
And it has been hugely successful. It fulfills the economic premise that ‘money talks’ Sanctions and other financial penalties can be a very effective way to implement change. Perhaps if Australian companies and organisations were osrtracised and held to account financially if they are found to be tolerating sexual harassment, then the numbers might start to decline.
Sonia Hickey is a freelance writer, magazine journalist and owner of 'Woman with Words'. She has a strong interest in social justice, and is a member of the Sydney Criminal Lawyers content team.