Relationships ban is a bridge too far
Employers are unlikely to follow the Australian prime minister’s example. Anna Patty reports.
‘‘My experience is that, frankly, most employers don’t have policies that regulate this at all.’’
Anthony Wood, law partner
Australian Prime Minister Malcolm Turnbull’s new code of conduct banning relationships between ministers and their staff is tougher than you would find in most workplaces.
A complete ban on relationships is virtually unheard of in offices outside the country’s parliament.
But many workplaces have disclosure policies to address a potential conflict of interest, including between a boss and subordinate employee.
Peter Wilson, head of the Australian Human Resources Institute, said the common approach was for co-workers to declare a relationship to an independent party.
Relationships Australia data shows that up to 40 per cent of people will develop a long-term relationship with a co-worker and this was consistent with individual liberty and laws of privacy.
‘‘The problem is when there is an affair or it has some complicating issue in terms of the rights of other parties,’’ Wilson said.
‘‘If a relationship isn’t declared and it is complicated in terms of its impact on the organisation or co-workers, then the person’s employment is at risk, as we saw last year with the AFL.’’
In another case, insurance giant QBE’s chief executive, John Neal, last year had A$550,000 (NZ$534,975) cut from his bonus for not disclosing a romantic relationship with his executive assistant.
Under QBE’s code of conduct, employees must disclose to their manager any close personal relationships that may cause a conflict of interest and that ‘‘depending on the nature of the conflict or potential conflict, action will be determined on a case-by-case basis’’.
In 2015, a Westpac employee lost an unfair dismissal case in Australia’s Fair Work Commission because he failed to disclose a romantic relationship with an employee he managed. He also lied to his manager twice when he was asked about the affair.
A Westpac spokesman said its employees must comply with a code of conduct, including a conflict of interest policy that discourages leaders from having a relationship with a direct report or more junior employee in their team.
‘‘If a relationship does develop between a manager and a person in the same team or working closely together, this relationship must be disclosed immediately.
‘‘It would be usual practice that people in a relationship would not be in the same reporting line to ensure that there was no favouritism or any other wider issue.
‘‘If such a relationship was not disclosed, disciplinary action will be taken,’’ the spokesman said.
Herbert Smith Freehills partner Anthony Wood said it would be unusual for a business in Australia to ban sexual relationships between consenting adults.
‘‘My experience is that, frankly, most employers don’t have policies that regulate this at all,’’ he said.
‘‘Having said that, there are a large number of businesses that do have policies that require employees, and managers in particular, to self-report if they are in a relationship that may represent a conflict of interest or potential conflict of interest.’’
Employers are liable for sexual harassment and unlawful discrimination.
The United States House of Representatives this month passed a resolution to ban Capitol Hill legislators and their staffers from having sexual relationships in the wake of the #MeToo campaign. The resolution would also require that any financial settlements in alleged sexual misconduct cases be legislators personally.
‘‘If we had a system like that in workplaces, it would be almost unworkable because we all know many relationships are formed between work colleagues,’’ Wood said. paid by
‘‘In a small workplace where there is a potential history to redress of inappropriate behaviour it may well be manageable.
‘‘It is quite easy for the [Australian] Prime Minister in the event of a breach to take action to sack a minister if they breach his guidelines.’’
Josh Bornstein from Maurice Blackburn Lawyers said Turnbull’s code was a ‘‘panicked’’ reaction to the Barnaby Joyce scandal ‘‘and serves as a neat distraction from the real issues of financial probity’’.
‘‘The policy is a gross overreach and attempted intrusion into consensual sexual relationships,’’ he said. ‘‘As far as I am aware, the private sector doesn’t ban consensual sexual relationships of work colleagues.’’
Bornstein said it was unlawful to discriminate against an employee on the basis of a lawful sexual activity under Victorian law and it was lawful for people to have consensual sex regardless of whether they were married or unmarried.
‘‘In my experience, I have not seen a case yet of corporations or the public sector banning consensual relationships of work colleagues,’’ he said.
–Sydney Morning Herald