January 2013

28 Jan – 03 Feb 2013

Australia Network News:

Disabled, elderly patients in Queensland say they are suffering from age discrimination when it comes to government funding of their care. Once over the age of 65 they become the responsibility of the Commonwealth aged care system rather than state disability services. They receive 12 hours of support a week, which is not even enough to cover their basic hygiene needs. Under the State government up to 65 hours a week of support is provided but you must be under the age of 65.

Nature:

The CSIRO is under further scrutiny, even after taking steps to address the issue of bullying and harassment among employees. Comcare had instructed the CSIRO to improve its systems for managing cases of alleged bullying and set a deadline of 31 December 2012 for compliance. It was believed that the CSIRO had responded comprehensively to these requirements. However, there are reports that in some cases the incidence and severity of bullying has escalated after the mandatory bullying training that staff are required to undertake. The president of the CSIRO staff association says the organisation is a healthy one, but that the issue of bullying has damaged the CSIRO’s reputation internationally.

The Australian:

James Ashby’s sexual harassment case has been put on hold. The matter was adjourned by mutual agreement between the parties just hours before it was set to begin. The matter was adjourned after a request from Mr Slipper. Mr Ashby has not requested any future hearing date for the case, effectively putting it on hold.

The Canberra Times:

Virgin Airline have won leave to appeal against an unfair dismissal decision in favour of a flight attendant who refused to cut his hair to conform to the style manual. Virgin struggled for 15 months to get its employee to comply with the company’s personal grooming manual before sacking him in October 2011. Virgin lawyers argued there were significant errors in the Commissioner’s findings including her conclusions on medical certificates supplied to his bosses and the attendant’s intention to comply with the company’s Log Book. The case has been re-listed for hearing.

Smart Company:

Sheryl Sandberg, Facebook’s chief operating officer, has delivered a scathing condemnation of sexist stereotypes in the workplace. She believes that women face both open and covert discrimination and instead women should be able to openly discuss with employers if they have plans to have children. She said that women are given messages from their infancy that they aren’t expected to succeed and this is confirmed by stereotypes in the workplace.

Sydney Morning Herald:

Studies show that women are their own worst enemies in the workplace. A British poll has found that women would prefer male bosses by six to one. Another survey in the US found that most of the bullying that female experience is inflicted not by men but by other women. An Australian report also revealed that women at work who didn’t reflect the traditional female stereotype were intensely disliked by other women.

Castleford:

An international survey of 4,000 people has found that over half of workers in Australia, the US, Canada, New Zealand and Spain felt that social media had eroded their privacy in the workplace. One in ten Australians said they were insulted by a colleague using digital communications. Most of those surveyed said if they were being bullied digitally at work they would take the issue up with their manager.

Insurance Business:

According to Safework Australia, work related stress has begun to represent such a huge cost to employers that by 2020 stress-related illnesses will be the leading causes of the global disease burden. Workers with mild symptoms of depression take twice as many sick days as those who do not have these symptoms. 18% of Australians work in excess of 48 hours per week. As a result work-family conflict continues to be a major contributor to poor health and well-being. One of the most at risk groups was workers between 25 – 34 years. Levels of bullying in Australia are at 6.8%, which is slightly higher than international rates. Nearly 42% of males report they have been sworn at or yelled at in the workplace. Over 20% of workers have been humiliated in front of others and almost 20% have experienced discomfort due to sexual humour.

Australian Financial Review:

“Fattism” may become the new legal risk in workplaces where employers and staff run the risk of legal claims for making assumptions or comments about fat people. Signs point to a growing number of these cases. In 2011 a discrimination claim was made against a university alleging that the complainant was subject to negative comments because she was obese. The claim was unsuccessful because it was not borne out by the evidence. A number of unfair dismissal claims have been brought because employment was terminated on the basis that they were overweight. Several Australian women have also brought successful sexual harassment claims after hearing derogatory workplace comments about their weight. National anti-discrimination legislation makes it unlawful to treat employees or prospective employees less favourably based on a presumed medical condition. If a person was not employed because it was believed the applicant was overweight and likely to have an eating disorder, this might amount to unlawful disability discrimination. In Victoria it is unlawful to discriminate against employees based on physical appearance.

The Age:

Faith-based organisations are being allowed to discriminate against employees under the proposed discrimination laws. This has been the subject of much criticism. Religious organisations are very large employers and run hospitals, charity groups, employment services and schools. Therefore the application of discrimination within each group is random and unpredictable, leaving people working in these organisations vulnerable. The legislation helps entrench discrimination by exempting religious groups.

The New Lawyer:

Relying on candidates’ social media sites to make hiring decisions could be a breach of privacy and discrimination laws. Employers should document any information they use from social media. If the information is linked to a protected attribute under state or federal discrimination law and it becomes a factor in the recruitment decision employers will be exposed to a discrimination complaint. Information that is acceptable to glean from a candidate’s social media page includes spelling, discretion, composure, maturity and presence. The Privacy Act is another avenue of legal exposure for employers who use social media, but it does not apply if no record is created of the information.

The Telegraph:

Australia’s discrimination watchdog wants the federal government to water down its new hate laws to avoid litigation, as the broad definition will spark too many lawsuits. Discrimination has been redefined as conduct that offends or insults. This definition creates a very low threshold for defining what discrimination is. People could be accused of discrimination over what they say in private conversations held in a public place, such as a club, cafe or office.

Courier Mail:

A mother of three was forced to leave a public pool after staff insisted she stop breastfeeding her 11-month-old baby. Ms Webster was told that she was not allowed to feed her baby out in the open. She was offered alternatives including going into a change room or moving to the corner and covering her baby with a towel while she breastfed. After a short argument Ms Webster left the pool in tears. In Queensland breastfeeding is protected by law and discrimination on the basis of breastfeeding is illegal in all areas of public life.

Onrec:

53% of adults who participated in a survey believed that privacy in the workplace has been eroded with the proliferation of social media. One in ten respondents discovered colleagues using social media initiated secret discussions about them online. 11% have had embarrassing photos or videos taken at a work event and uploaded onto social media sites. This has resulted in many people turning away from social media.

Matthews v Hargreaves (No.4) [2013] FMCA 4

The former CEO of a local council who alleged disability discrimination after a councillor disseminated information about the CEO’s medical condition (Hepatitis C) had his claim rejected because he had signed a deed of settlement when his employment ended. But for this deed, the court would have found that discrimination on the ground of his disability had occurred.

21 – 27 January 2013

New Lawyer:

A federal court decision to uphold the dismissal of an employee despite bullying allegations confirms an employers right to take appropriate disciplinary action for workplace misconduct. This highlights the fact that mitigating circumstances such as bullying and intimidation generally won’t support an unfair dismissal claim. A cargo terminal operator sacked the man concerned after a physical altercation with a colleague. The outcome reassures employers that courts will back dismissals that involve obvious misconduct. Bullying in the workplace is now among the most common complaints we receive from people seeking personal injury compensation.

The Observer:

Behind-the-scenes bullying and harassment is taking the biggest toll on Queensland worker’s stress levels. There has been an alarming increase in the number of workers seeking advice about bullying and workplace harassment. Although government efforts have been made to address workplace bullying Ms Davies a Brisbane based lawyer said that the onus came down to employers.

Financial Standard:

eFinancial Careers said after a survey that nearly two thirds of Australian finance professionals think gender discrimination takes place in the industry. Perceptions of gender discrimination in the workplace vary greatly between men and women. 84% of women said that gender discrimination does exist in financial services compared with 54% of men. Only half of women felt they could report gender discrimination in their firm without some form of reprisal.

Verdict:

A young woman who was injured when a light fell on her whilst she was staying in a motel for a work trip has won her claim for worker’s compensation. The woman had a civil service job and was sent to a town 100 miles away were she was supposed to observe a budgeting process and meet the local staff. Her employer arranged for her to stay at a motel. Whilst she was having sex a light was knocked loose and fell on her. She suffered an injury, which later resulted in depression. Only injuries arising out of and in the course of employment are covered through Comcare insurance. Comcare originally held that the injury was not covered because her employer had not expressly or impliedly induced or encouraged the applicants sexual conduct and this was not an ordinary incident of an overnight stay like showering, eating or returning to the motel. The woman then appealed to the Australian Federal Court who sided with her. The Court held that injuries are compensable if they occur during a work period and seeing as the woman had to spend the night away from home due to work the sex took place during the work period. According to the court sex is no different from any other lawful recreational activity that might occur in the context of a business trip.

Sydney Morning Herald:

The federal government’s proposed anti-discrimination laws leave intersex people vulnerable to discrimination. Although the bill attempts to include intersex people under the category of gender identity this is inappropriate, as being intersex is a matter of biology, not gender identity.

The Daily Telegraph:

The government’s attempts to modernise Australia’s anti-discrimination laws has attracted widespread criticism. Discrimination on the grounds of gender identity or sexual orientation will be outlawed for the first time. One concern is that the definition of discrimination has been widened to include “conduct that offends and insults”. This is said to threaten free speech. Discrimination will become illegal in all areas of public life, not just in the workplace. Volunteers will also be protected for the first time under legislation and they will be able to lodge complaints and seek damages payouts.

14 – 20 January 2013

National Secular Society:

The Australian government has given religious groups wide-scale opt-outs in proposed new anti-discrimination laws. The Government has agreed that religious bodies should be permitted to be able to discriminate in employment against a wide range of people – including pregnant women. Gay people will also be entirely unprotected if they are employed by an employer with a religious ethos. The draft Bill permits ‘faith-based’ groups including schools and hospitals to refuse to hire people because of a wide range of attributes that would be unlawful for any other organisation.

Smart Company:

The Fair Work Commission has reinstated a Virgin Airlines flight attendant after being sacked for having a hairstyle that was not authorised by the airline. Virgin Airlines require that their male flight attendants have hair no longer than collar length. David Taleski was sacked in October 2011 for having a ponytail that contravened this standard. Taleski claimed the sacking was an unfair dismissal after first telling his bosses he would be growing his hair longer for religious reasons. He then said that his long hair was due to a medical condition that he was uncomfortable discussing and provided Virgin with five medical certificates over the course of a year. Virgin did not accept this and Taleski was grounded because of his hair. Fair Work commissioner held that the dismissal was harsh, unjust or unreasonable and that Taleski has provided medical evidence to back his claims and although he did not follow proper dispute resolution procedures, his actions did not warrant dismissal.

Smart Company:

A Melbourne concreter has won an unfair dismissal case after the company fired him for allegedly smirking during a conversation reprimanding him for a safety violation. It appeared that the general manager had not intended to fire the employee but decided to do so based on a misunderstanding of his body language. A decision of this type must be based on evidence rather than impulse.

The Australian:

One in six federal public servants claimed to have been harassed or bullied in the past 12 months. There is an emerging trend of frustrated clients attacking public servants using social media such as Facebook and Twitter. Dissatisfied clients abuse employees online, but the statements made tend to be of a highly personal nature. Compensation costs for stressed and injured public servants had doubled in a year to nearly $1 billion. Comcare has recorded its first loss, a startling $564 million for 2011/12.

ABC News:

James Ashby’s lawyer has sought leave to appeal against a Federal Court judgment that was highly critical of his actions in bringing a sexual harassment case against Peter Slipper. Michael Harmer says the judgment has affected his professional reputation and exposed him to potential for disciplinary action. Justice Rares criticised Mr Harmer’s inclusion of scandalous and irrelevant references to suggestions that Mr Slipper had a sexual relationship with a male staff member and that the purpose of this was to attract significant adverse publicity in the media.

7 – 13 January 2013

Mondaq:

What goes on tour stays on tour – or does it?

Technology blurs the boundaries of the workplace and employers are finding it difficult to regulate workplace behaviour after hours. Most types of after-hours behaviours, which end up being pursued against employers, involve sexual misconduct, injuries sustained at events and the misuse of social media. Employers should consider both implementing rules for and disciplining for breaches for after hours workplace behaviour. These are legislative obligations, which exist for employers as well as individuals under both health and safety and anti-discrimination legislation. This will apply if the after-hours event involves workers being at work whilst in the business or a business undertaking. This duty extends to ensuring that the health and safety of other persons is not put at risk.

The Sex Discrimination Act 1984 (Cth) makes it unlawful for employees and other workplace participants to sexually harass each other. An employer will not be vicariously liable for such behaviour if they have taken all reasonable steps. Even where conduct may not fall within the realm of workplace legislation there is still a reputational risk created by employees after hour behaviour. Older case law found that where there is a relevant connection to employment this would still be covered by legislation. After-hours conduct can legitimately be the subject of employer regulation and disciplinary action through both the contract of employment and employment policies.

Smart Company:

COSBOA claims anti-discrimination laws will vilify small business owners

The Council of Small Business Organisations of Australia have slammed the federal government’s proposed anti-discrimination legislation on the basis that it does not protect small business but vilifies their owners. COSBOA have raised its concerns in its submission to the Senate Committee. Legal experts say that the legislation will make it easier for employees to bring a discrimination complaint. COSBOA is lobbying to have small business exempt from having the onus of proof placed on them when a discrimination claim is made.

Lawyers Weekly:

Women’s retention top priority for new LCA head

The new president of Australia’s foremost legal body said he would tackle female retention. Joe Catanzariti, the president of the Law Council of Australia said that one of his five nominated key focus areas for his term is the rate of female attrition and retention in the profession.

Sydney Morning Herald:

Where breastfeeding is okay

There are only two known workplaces in Australia where a mother can breastfeed on the job and keep her baby by her side as she works. Mamaway was accredited this week as a breastfeeding-friendly workplace. More and more women are forced into returning to work earlier due to financial pressures. Under equal opportunity laws, workplaces are required to assist mothers to return to work and provide time and space for them to express breast milk. Since mid-2011 it has been illegal to discriminate against breastfeeding women.

Australian Broker Online:

Proposed law could end workplace banter

Workplace banter could soon be a thing of the past under the Labor government’s proposed overhaul of discrimination laws. If the banter is perceived by a bystander as offensive, insulting and intimidating it could spark costly lawsuits for employers. The Law Council formally submitted to the inquiry that the bill goes too far and has the potential to curtail free speech. Actions would be brought before a court where an arbitrator would apply a subjective test based on the feelings or reaction of the person aggrieved. The application of this test may result in liability for conduct that falls outside the scope of conduct that has previously been considered as the appropriate domain of discrimination law. Off-limits topics of conversation cold include age, sexual orientation, immigrant status, marital or relationship status, nationality or citizenship, political opinion, pregnancy, religion and social origin.

31 – 6 January 2013

The West:

An ageing public workforce is being blamed for a 43% blowout in the number of days off through workplace injury. A worsening severity of injuries is driving the increase with 28% of workers requiring absences of more than 60 days last year compared with 22% four years earlier. WA’s public servants are on average five years older than the rest of the workforce. Although the injuries occurring are resulting in more time off, there are fewer people experiencing workplace injury. There were seventy-six workers compensation claims related to bulling and harassment in 2011-12 and cost $4million.

The Australian:

Bullying is now being used to define a wide variety of behaviours from simply being called out on your slackness to being put under pressure. Margaret Simons, director of the Centre for Advanced Journalism at the University of Melbourne was accused of crossing the line between legitimate journalism to bullying. This is an example of how subjective the term bullying has become. More and more people now depict themselves as the victims of bullying. The ideas of workplace bullying and university bullying are common these days.

Health Canal:

Rural workplaces tend to ignore sexual harassment or blame victims. Employers and employees in rural and remote Australia are inclined to deny or minimise sexual harassment in the work place. Research found that four fifths of employers believed that women’s behaviour contributed to their victimisation. Attitudes and behaviours vary depending upon occupation, degree of rurality and gender ratios.

Canberra Times:

The pay gap for male and female university graduates is growing, with figures showing the difference in salary more than doubled last year. A study found that the median gap in starting annual salaries for graduates increased from $2000 in 2011 to $5000 last year. For example the starting salary for female law graduates was $50, 700 compared with $55, 000 for men. There is no logical reason why a male graduate would be seen as better than a female graduate. The study examined 23 salaries in 23 occupations and found that men earned more than women in 13 fields. Women graduates earned more in only seven occupations, including pharmacy, earth and computer sciences, although this gap is far smaller than occupations that favoured men. It will take a major change to corporate culture to reduce the salary gap.

WA Today:

Women in WA earn fully 25% less than their male colleagues and considerably less again in mining regions. Women in the finance sector suffer the worst pay discrimination with a gender gap of 32.7% in May 2012. A survey conducted by the Workplace Gender Equality Agency show that there are very few occupations where women do not earn less than men.

Mondaq:

Social media is now an integral part of workplace interaction. Employers now face the challenge of balancing bullying, harassment and brand damage risk with the need to respect employee’s privacy. Social media makes it harder to distinguish between professional and personal conduct. The Linfox case has paved the way for employers to dismiss employees for posting inappropriate comments on social networking sites. In light of this case it will be harder for employees to hide behind ignorance to justify inappropriate comments posted online. Imposing restrictive requirements on social media use is likely not only to trigger negativity, but possibly industrial action, as well as potentially breaching privacy and employment laws. Employers should focus on building a positive workplace culture that recognises the realities of employees connecting through new media and give employees the skills and direction to utilise social media for mutual benefit.

Herald Sun:

PM Gillard says reports of an increasing gender pay gap are concerning. However, Graduate Careers Australia said that the federal government agency had oversimplified the data, resulting in the misrepresentation of gender pay differences and that the gap still remained at 3%. GCA said that they were entirely supportive of the need for workplace equality and the misreading of the information had painted employers as discriminatory.