WorkSafe reported last week on a sole director electrician’s adverse publicity order that was issued as part of his penalty for failing to provide a safe workplace, after sexually harassing an electrical apprentice over a period of seven months in 2023. Along with a $15,000 fine, the electrician was required to publicise the circumstances of the offence, the charges and the penalty in two industry periodicals.

This story has been republished from SafetyNet - the union movement's weekly journal for OHS reps. If you haven't yet subscribed do it here! 

The workplace bullying, gendered violence and sexual harassment to which the apprentice electrician was subjected was persistent, explicit and threatening. Despite the apprentice raising their concerns with the electrician during a meeting with a support person, the behaviour continued. The apprentice felt that they had no choice but to resign.

WorkSafe’s investigations revealed no policies or procedures at the electrician’s workplace for reporting, investigating and stopping inappropriate behaviours.

At the time of the court hearing WorkSafe Executive Director of Health and Safety Sam Jenkin said the offending was a grotesque breach of trust and of the standards expected of those who employ apprentices.

"All workers, especially young workers who are just finding their way in the workforce, deserve to be treated with dignity and respect by their employer and colleagues," Mr Jenkin said. "This is simply unacceptable behaviour from anyone but appalling from a company director who was in a clear position of power, and I applaud the courage of this apprentice in speaking out."

Increased use by the courts of adverse publicity orders is one of the recommendations of the Sentencing Advisory Council report on OHS sentencing which was released in February this year – the State government is yet to respond to the report’s recommendations. Adverse publicity orders require companies/individuals to publicise their offending, the consequences, the penalty imposed and any other relevant matter.

Adverse publicity orders are court orders that mandate a person or entity to publicize specific information regarding their conduct, particularly when they have been found guilty of a violation or offense. The primary purposes of these orders include:

• Punishment: They serve as a punitive measure against the offender.
• Public Awareness: They aim to inform the public about the wrongdoing, thereby protecting the public interest and dispelling any false impressions created by the offender's actions. 

But in this case one has to wonder what the point of the order is, given that both WorkSafe’s reporting of the case and the adverse publicity order itself are completely anonymous.

Most victim-survivors of workplace harassment want to see and hear public statements of wrongdoing - more than anything else. For them, even an anonymous statement of wrongdoing can contribute to their sense of justice having been served. 

And in the case of a sole trader, protecting the victim-survivor's identity sometimes necessitates obscuring the name of the perpetrator. 

But is the purpose of punishment and public awareness served if the company cannot be identified? 

Megan Stout, of SafetyNet, is critical of the order. "In my opinion the content of the adverse publicity order itself leaves a lot to be desired. Very few words are spared for the victim or the actual harm he has caused, and those words are vague and generic at best. His failure to ensure that policies and procedures were in place for the reporting and investigation of inappropriate behaviours was not addressed at all."

"The electrician writes of “creating a risk of psychological injury” and “contributing to an environment” where workplace gendered violence was present – phrasing that places him at arms-length from causing the actual harm. He also writes of workplace leaders “turning a blind eye when we see this behaviour taking place” and commits to “call it out” in the future – more phrasing that implies he is an observer in the situation, not a perpetrator."

"Despite claiming that he is not seeking to justify his behaviour, he writes a solid three paragraphs doing just that, referencing issues of “joking”, “just the way things are” and a toxic industry culture. His tone in the statement implies that he was simply unaware of the harm that could result from such inappropriate behaviour – a claim that is hard to accept given that the apprentice and a support person had addressed the issue with him. Whilst we think there is a real and important role for adverse publicity orders to take in sentencing OHS offences, we hope that future statements avoid the pitfalls outlined above."

Read more: Electrician fined for appalling behaviour towards apprentice | WorkSafe Victoria