For the past two weeks, Australian politics have been dominated by the explosive revelation that Deputy Prime Minister Barnaby Joyce engaged in an extramarital affair with a staffer who is now expecting his child. The particulars of the relationship have been roundly criticised by both sides of politics, with several ministers and former politicians calling for Joyce's sacking.
In direct response to the affair, Malcolm Turnbull has banned sexual relations between ministers and staff in a bid to bring the ministerial code of conduct in line with "attitudes in the corporate world." This may have some people wondering: is it ever illegal to have sex with an underling in a corporate setting?
In the unlikely event that you missed all the headlines, the Daily Telegraph revealed on February 7 that Nationals leader Barnaby Joyce walked out on his marriage of 24 years and is now living with a former media advisor who is pregnant with his baby.
— Zanetti Cartoons (@ZanettiCartoons) February 13, 2018
Needless to say, it isn't a good look for Barnaby who fronts a conservative party that prides itself on championing traditional family values. At the time of writing, Joyce is still clinging to his party's leadership but it looks increasingly unlikely that he will be able to retain his position.
In the wake of the affair, Joyce has been accused of nepotism, cronyism and flat-out corruption, but we're here to focus on the legalities of sexual liaisons between managers and their staff.
So, it it legal to proposition a subordinate for some hanky panky while on the job? As Paula McDonald, Professor of Work and Organisation at the Queensland University of Technology explains on The Conversation, it largely depends on the nature of the relationship:
Unlawful sexual conduct includes sexual abuse, sexual assault and sexual harassment. Sexual harassment is any unwanted or unwelcome sexual behaviour that makes someone feel offended, humiliated or intimidated. It is not interaction, flirtation or friendship that is mutual or consensual.
In contrast, inappropriate relationships – while not explicitly unlawful – are usually associated with unequal power relationships.
Organisational codes of conduct often set out guidelines around the behaviour of supervisors and managers over their subordinates. A power imbalance between two employees may arise due to age, seniority or other factors, such as the capacity to influence outcomes.
In other words, while it's perfectly legal for a manager to engage in consensual sex with a junior staff member, such relationships are almost always deemed to be 'improper'.
At the very least, it can create the perception of conflicts of interest, particularly when it comes to staff promotions and the like. This can lead to disciplinary action for the manager and even termination of employment.
If sex with staff members isn't specifically forbidden in your employment contract, pleading ignorance - AKA the "George Costanza defence" - is unlikely to save your skin.
For example, in 2014 a married Westpac bank manager embarked on a six-month affair with a female staff member. The affair quickly became public in the workplace due to multiple 'one-on-one' meetings in his office behind a locked door. When the branch supervisor became aware of the affair the manager was promptly fired - and later had his unfair dismissal claim rejected.
We'll leave the last word with the Bonk Banner himself, Prime Minister Turnbull:
We must recognise that whatever may have been acceptable or to which a blind eye was turned in the past, today, in 2018, it is not acceptable... It is a very bad workplace practice. And everybody knows that no good comes of it.
Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.