March 2014

24 – 30 March 2014

CCH

Employers who wish to reward and motivate employees should use bonuses, gifts, gift vouchers and other special incentives carefully. A recent decision of the Federal Court of Australia has said that employers should not use these benefits to treat some employees differently because they have relied upon a workplace or legal entitlement. The case concerned $300 gift vouchers rewarding employees for working during a period of industrial action. The relevant Union said that this constituted adverse action by the employer. The employer took adverse action by not giving gift vouchers to certain employees because they had taken industrial action. Giving a benefit to some employees but not to other employees who are doing the same work could constitute discrimination under the Fair Work Act. In this case the Court decided that the differential treatment was not because the employees had exercised their workplace right to take industrial action. For that reason it must be a substantial and operative factor. Here the purpose of the gift vouchers was to award the employees who had worked additional hours; there were two distinct groups of employees. However, the court did say that these types of rewards could constitute injury or discrimination.

Smart Company

The Federal Court has dismissed a former Energy Australia (EA) employees’ adverse action against the company. The claim accused EA of harbouring a culture of sexual harassment so bad the human resources director had to actively monitor the managing director for anything inappropriate. Mr Shea claimed the company’s former chief financial officer, Mr Holmes, sacked her from her position because she had complained of sexual harassment. Shea was later made redundant and she claimed this was a result of her complaint against Holme’s behaviour. However, Justice Dodds-Streeton found ‘no reasonable basis’ for Shea’s allegations and found Shea was not an ‘impressive, persuasive or reliable witness.’ In contrast, Holmes was ‘credible and dignified’ as was chief executive Mr McIndoe. EA said in a statement that it was pleased with the Federal Court’s decision, which validated its view that the business ‘acted with integrity and respect’ at all times during Shea’s redundancy.

Sydney Morning Herald

An extensive survey of recent migrants reported high levels of ethnic or religious discrimination. As the Abbott government prepares to strike down part of the racial discrimination law, the Monash University study has found many migrants regularly fear walking alone at night or becoming a victim of crime. The survey shows migrants settling in over the past two decades often feel singled out because of their skin colour or faith. Those from non-English speaking backgrounds are almost twice as likely to report suffering discrimination than from English speaking countries.

Pro Bono Australia

Discriminating and stigmatising attitudes towards people with depression and anxiety have steadily decreased in Australia over the past decade. The report by Beyond Blue has revealed that nearly 2/3rds of Australians have a family member that has experienced depression. This shows that people feel more comfortable talking to family and friends if they are depressed and that more people are seeking information and help.

Canberra Times

A former ASIO agent who says he was sacked because he fell in love with the wrong woman has failed to get his job back. The AAT made it clear it cannot help employees of Australia’s security agencies who fall foul of their bosses. The AAT says that employees of ASIO must rely on internal processes to address perceived injustices. ASIO has rejected its former officer’s claims of unfairness, saying that anyone dismissed by the agency has several avenues of appeals and will be treated with procedural fairness. The agent was four years into his career at ASIO in 2011 when he met and fell in love with a woman from overseas. Once he became aware that she was lodging in Canberra with her nation’s military attaché he made a contact report to his superiors. He was then dismissed in late 2011.

CCH

Parties to a bullying application have agreed to implement orders, which limit and regulate the parties’ activities, contact and conversation at work. This is the first example of a stop bullying order made under the FWC’s new powers. During a conference concerning the application the parties agreed the employee who was the subject of the application must not:
• Have contact with the applicant employee alone
• Comment about the applicant employee’s clothes or appearance
• Send any emails or texts to the applicant employee except in emergency circumstances
• Raise any work issues without notifying the Chief Operating Officer of the respondent employee, or his subordinate, beforehand
The employee was also required to complete any exercise at the employer’s premises before 8am. If the parties experience difficulty implementing the order, they have been given leave to have the matter relisted.

PRWire

According to a white paper launched by The Executive Connection last week, many businesses are missing out on the opportunities offered by an ageing workforce. According to the report SMEs that recruit and retain older employees while offering a succession plan for younger rising talent are in a better position to adapt to the emerging cashed up baby boomer customer base. More employees are looking to remain in the workforce for longer. Age Discrimination Commissioner has said that the white paper reinforces the very real challenge for government, employers and the community in recognising the true capacities of older people who wish or need to work and eradicate age discrimination in the process.

Mondaq

The Workplace Gender Equality Act 2012 has now replaced the Equal Opportunity for Women in the Workplace Act 1999 and established the Workplace Gender Equality agency. The role of the agency is to ensure that employers regulated by the new legislation comply with their obligations. These obligations include reporting standards for private sector employees and are focussed on improving gender equality. Employers must submit their reports between 1 April 2014 and 31 May 2014. The workplace profile is designed to show the composition of an organisation’s workforce by collecting information on gender, employment status, classification of manager and non-managers, managers’ reporting level to the CEO and remuneration for managers and non-managers. Employers that fail to take the necessary steps may face the following penalties: being publicly named, reported to the Minister, precluded from tendering for state or commonwealth procurement contractor or precluded from receiving financial assistance from the government.

News.com

Defence top brass needs to move quickly to stop a growing backlash against gender equality in the military, says Sex Discrimination Commissioner Elizabeth Broderick. Ms Broderick launched her final audit report on the treatment of women in the defence force and warned that if the backlash was not quelled it could derail the historic reform program. The attempt at cultural change had led to a backlash against female ADF members; the ADF has been a male dominated area since forever. She said that more needs to be done to better communicate the case for change and the rationale for many initiatives that are now in place, focussing in particular at the mid and junior levels. Ms Broderick praised the work of senior military leaders, including the Army Chief lieutenant who has become the poster boy for the gender equity movement. She identified 4 areas that need to be worked on:
• Commanders to be held responsible for culture in their units
• Agreed sexual ethics training
• Bad behaviour had to be better reported
• Better promotion of the impact of change
She pointed to the Sexual Misconduct Prevention and Response Office of an example of the change that was occurring in the ADF. The office received almost 300 calls and emails from alleged abuse victims between July and November 2013.

The Australian

Australians should be encouraged to stay in the workforce to prevent a ‘longevity tsunami’ and reduce the burden of funding the pension. Age Discrimination Commissioner Susan Ryan said action needed to be taken to ensure older workers were kept in employment for longer. Recent research shows there are 2 million people over 55 who are willing and able to work and who cannot find work because of age discrimination in the workforce.

17 – 23 March 2014

The Guardian

Community groups have warned the Abbott government against pursuing morally repugnant changes to racial discrimination laws. Community groups have argued that the proposed amendments would ‘licence the public humiliation of people because of their race.’ After the 2011 federal court ruling against Andrew Bolt about articles he wrote, the coalition vowed to repeal s18C in its current form. The federal court found that Bolt had breached s18C of the RDA by publishing newspaper articles that questioned the motivations of fair skinned people who identified as Aboriginal. A spokesperson for the attorney general said the government would not comment on the wording of the proposed amendments to meet the objective of reforming the RDA.

SBS

Australia’s Disability Discrimination Commissioner Graeme Innes is urging the NT and WA governments to audit their prisons to see how many people are incarcerated and have never been convicted of an offence. This follows the scrutiny of Ms Fulton’s case. She was found to be unfit to plead due to her intellectual disabilities and has spent the last 18 months in jail even though she has never been tried for the alleged offences. The AHRC has said that they cannot force the release of prisoner like Ms Fulton. Mr Innes said that this was simply unacceptable.

BRW

A coalition of business and women’s lobby groups have conceded that there are many items that could be cut from the gender reporting requirements for companies. This would reduce some of the legislative burden that comes with reporting on the progress of women through their organisations.

Daily Life

A new Belgian law expected to come into effect in early April will make sexual harassment a criminal offence punishable by fines of up to $1500 or a prison sentence of up to one year. The law will not only cover harassment on the streets, but will also cover workplaces and social media.

Daily Reporter

A US Federal Court has ruled that an employer did not discriminate against an employee who claims she was denied a room to pump breast milk and pressured to resign on her first day back from maternity leave. She did not meet the legal burden of showing she was treated so badly that any reasonable person would have resigned. The court held that rather than the employee facing intolerable work conditions, the employer sought to accommodate the employee’s needs. She was denied access to the lactation room because she hadn’t completed the necessary paperwork, a three-day waiting process that was the same for all nursing mothers. Instead she was offered the alternative of pumping in the wellness room, which may not have been immediately available or ideal, however she had an obligation not to jump to the conclusion that the only option was to resign.

Essential Baby

A Sunshine Coast mum who was breastfeeding in public was reduced to tears after a stranger told her what she was doing was disgusting. The young mother was feeding her 13-day-old son when an elderly man wearing speedos approached her. She said he stood in front of her and said ‘that’s disgusting, go home you little girl, go home.’ She said she then apologised and stopped feeding but wished now that she hadn’t.

Smart Company

A CSR employee who was dismissed after what he described as ‘mucking around’ has failed in an unfair dismissal claim to the FWC. Mr Goldsmith was employed as a glass worker at CSR for more than 10 years and was using a broom at a loading bay where a junior employee was being trained in the operation of a forklift. Mr Goldsmith hit the forklift with the broom causing the window to shatter. Mr Goldsmith was interviewed after the incident but did not appear to take the matter seriously. Mr Goldsmith’s employment was terminated and he was given five weeks of pay in lieu of notice. The Commission found that Mr Goldsmith’s act of hitting the forklift had been a deliberate attempt at scaring the young employee receiving training. The FWC was satisfied that CSR had a valid reason for dismissal.

Smart Company

A recent study has found that female entrepreneurs pay themselves less than male entrepreneurs. The study found female entrepreneurs who graduated from the Goldman Sach’s program had entered it with average salaries that were 80% of those of their male counterparts. Recent research in Australia found that 51% of self-employed women do not pay themselves a wage.

Smart Company

A childcare manager has had her unfair dismissal claim thrown out of the Employment Appeals Tribunal in the UK after it was found she ‘harassed’ colleagues with her devout beliefs. Ms Grace was a nursery manager in London and was dismissed after holding an unauthorised training session for staff members, which caused complaints. The employer said it was not company policy to hold ‘Bible sessions’ and it was unsuitable to have discussions about religion in the workplace. Ms Grace lodged a claim of discrimination, which was dismissed by an Employment Tribunal. The tribunal found that she was not dismissed because of the religious beliefs she held but because of the inappropriate ways in which she had manifested them at work.

CCH

The first Full Bench decision to consider the new bullying application provisions of the Fair Work Act 2009 gave the provisions a substantially broader scope than anticipated. Ms McInnes sought an order to prevent her from being bullied at work, naming her employer, PSS, as one of the respondents. However, as none of the alleged instances of bullying occurred on or after 1 January 2014, PSS raised a jurisdictional objection as to whether the FWC jurisdiction had authority to deal with an application, which involved bullying prior to the commencement of the Act.

The FWC Full Bench rejected PSS’ jurisdictional argument and held that alleged bulling occurring prior to 1 January 2014 could be considered. The Full Bench found:
• Legislation only operates retrospectively if it provides that rights and obligations are changed with effect prior to the commencement of the legislation
• An order to stop bullying under the Act will operate prospectively, based partly on past events
• Bullying at work is not restricted to behaviour from 1 January 2014
The decision means that conduct extending some distance into the past can be subject to review when a worker lodges a claim for orders.

Application by Kathleen McInnes [2014] FWCFB 1440

10 – 16 March 2014

Thomson Reuters Foundation

Women journalists are often groped and threatened while covering protests and conflict, as well as facing this abuse at work. When they complain they are told to grow up. An international survey on women in news media found that nearly two-thirds of respondents said they had experienced intimidation, abuse and even death threats because of their work. The majority of abuse occurred in the workplace and was perpetrated by male bosses and co-workers. More than 14% of respondents said they had been subjected to sexual violence in the course of their work, and almost half of respondents said they had been sexually harassed. But more than three quarters of the women who experienced sexual violence said they did not report it, sometimes because they thought this would make it more traumatising. Of those who had been sexually harassed, more than 40% said it had occurred in the office.

The West Australian

Kim Macdonald has spoken this week about the battle of the sexes in the boardrooms of 2014. Sexism is an unintended consequence of societal values that remained stubbornly attached to male leaders. In some cases men were the perpetrators of sexist attitudes and stereotyping while in other cases women were the ones responsible for failing to step-up, take opportunities and demand the same perks as their male colleagues. However, sexism rarely extended to misogyny. Colleen Schooling, WA general manager of CPA Australia, said the time has come to reconsider male stereotyping, to ensure men who choose the role of primary caregiver and homemaker were not subject to bias.

Perth Now

Union boss Joe McDonald has been fined $30,500 and banned from a Perth construction site for three years for bullying. He was found by the Federal Court to have threatened to have workers thrown off ‘every construction site you’re on in Perth’ if they didn’t participate in a strike. He was also found to have blocked access to the Mundaring Water Treatment Plant when a contractor tried to enter a site. He was also found to have held an employee by the neck and raised his fist at him. Mr Abetz has said this is an example of ‘appalling bullying and intimidation’ and warranted action.

Smart Company

A worker who tested positive for drugs and was then given a chance to provide a clear test, has failed in his claim of unfair dismissal after failing to turn up for the further test. Mr Pitts was employed as a scaffolder by AGC Industries, which conducted a random site-wide drug and alcohol test on employees. Pitts provided a urine sample, which indicated the presence of methamphetamines and cannabis. He was given until 8 February to provide a clear drug result and was advised if he failed to do so, it might result in further consequences, including dismissal. Pitts failed to do so and was subsequently advised that his job had been terminated. The FWC found that there was a valid reason for dismissing Pitts given the results of the initial drug test as well as failure to provide a clear test result.

Lawyer’s Weekly

A landmark study by the Law Council of Australia has found that women face significant levels of discrimination in the legal profession. Fiona McLeod described female attrition as a symptom of a profession that still caters to men. She said the problem is with the profession and the fact that we’re still operating basically as a men’s only club where some women get let in on a case-by-case basis. Half of all women claimed to have experienced discrimination due to their gender, compared to just over 10% of men. One in four women said they were discriminated against due to family or carer responsibilities. A number of women also reported receiving unwanted advances, feeling objectified or being exposed to inappropriate sexual behaviour. Discrimination was not limited to male offenders, with a number of women identified as the perpetrators. The report singled out the billable hour as being a key driver of dissatisfaction among women. However, McLeod claimed that abolishing the billable hour would not solve the profession’s attrition problem.

The Australian

Women compromise 58% of all lawyers admitted in the past 10 years, but men are still more than twice as likely to make it to the top of the legal profession.

ABC

Graeme Innes says he wants to know exactly how many disabled people are being indefinitely detained in WA and the NT. This follows the recent case where WA authorities have failed to release an intellectually disabled Aboriginal woman who has been in jail for 18 months without a conviction. Ms Fulton was charged with driving offences but was found unfit to plead because of her limited intellectual capacity. Mr Inness said that there are 20 to 30 people that he is aware of being held unfit to plead and are in jail.

Radio Australia

Sex Discrimination commissioner Ms Broderick says the lack of women in Parliament has a direct impact on major issues affecting women. Ms Broderick said she would support any measure that would boost the number of women in Parliament. She said it is important to fight against the assumption that well-educated Australian women will just trickle into positions of power, what is actually needed is some active intervention. Women make up just one third of Australian parliamentarians. The lack of women in Parliament has a direct impact on issues such as domestic violence, working conditions for women, their leadership roles and pay equality.

The Australian

Women who have children lose 17% of their wage over their careers as a result of their decision to have a family. A paper released by the Workplace Gender Equality Agency has compared the pay of women with children to women without. The agency found that a woman’s earnings and career progression are impacted from the time they fall pregnant. Women retuning after work from parental leave were found to be subject to an average 7% wage penalty. The wage penalty was found regardless of whether or not women returned to part time or full time work.

Mondaq

The Full Bench of the FWC decided that conduct need not occur post 1 January 2014 to enliven its new bullying jurisdiction. Ms McInnes alleged she had been bullied at work over a six-year period from November 2007 to May 2013. On 9 January 2014 she lodged an application for a stop bullying order. Her employer objected to the application on jurisdictional grounds. The Full Bench found the application was within jurisdiction because the Fair Work Act 2009 only required that the application be filed post 1 January 2014, not that the conduct occur post 1 January 2014. The Full Bench rejected that this meant laws had retrospective operation. This is because the legislation does not attach any adverse consequence to past bullying conduct; such conduct merely provides the basis for a prospective order to stop future bullying conduct. The bullied worker must still be employed in that workplace.

CNet

Sheryl Sandberg has launched a campaign to ban the word ‘bossy’, saying that it deters girls from becoming leaders. She says that when a little boy asserts himself he’s called a leader. Yet when a little girl does the same, she risks being branded bossy. This means that by middle school girls are less interested in leading than boys, a trend which continues into adulthood.

ABC

A study of 136 countries by the World Economic Forum, ranked Australia first in female educational attainment, but 52nd when it came to labour force participation among women. Those who are in paid jobs are earning 17.5% less than men. Lifting the number of women in the workforce could add as much as 13% to GDP, or $195 billion.

3 – 9 March 2014

Sydney Morning Herald

Australia’s Race Discrimination Commissioner will challenge Mr Abbott over the push to water down racial vilification laws. Mr Soutphommasane’s intervention in the debate will be delivered at the ANU where he will warn the proposed change may “licence racial hatred”. There is the risk that victims of racial abuse may absorb the message of hate and inferiority. Mr Soutphommasane says the proposition that any restriction of speech is demeaning, even to those it aims to protect, and it will not stand up to scrutiny.

BPS

Workplace harassment usually occurs because of problems with companies’ organisational structure, rather than due to personality clashes between employees. A research review carried out by the University of South Australia between 1987 and 2012 found that where harassment in the workplace takes place, it is usually a result of flaws in the way the whole company works, not due to incompatibility between members of staff as is commonly assumed. It also called for more research on how firms can prevent workplace harassment so more effective strategies for its removal can be developed.

Transforming the Nation

A recent survey of more than 6000 Australian nurses reveals many feel ‘unhealthy’ and identify stress as a major contributing factor. The survey also showed that 30% of nurses have a chronic illness and most rated their own health as ‘poor’ or ‘average’. Only a small number believed their overall health was good. Bullying was also identified as a workplace issue which contributed to stress and being unhealthy. Many nurses expressed concern about their workload, the impact of job losses and not being able to give patients the care they need.

Smart Company

The Federal Court has fined a Perth panel beating business, which sacked a long-term employee to prevent him from taking sick leave after he was diagnosed with cancer. Hi-Lite Automotive has been fined $35,000 after the court found a spray painter who had been with the company for nine years, was owed around 500 hours sick leave when he told his employer he had cancer. In response the court found the employer placed continuous pressure on him to resign for over a month. The employee did not resign and the employer then told him he did not believe that he had cancer and subsequently dismissed him. The court said this behaviour warranted a ‘significant deterrent penalty’. Adding that the ‘workplace rights sought to be protected in this case were fundamental and were all in the National Employment Standards.’

Border Mail

The Australian Services union is again involved in the governance issues at Moira Council. Mr King, union organiser, said members had instructed him to contact the Minister about the possibility of Local Government Victoria executive director, Nick Foa, being available to listen to their concerns on a confidential basis. Mr King said that staff were scared, their morale had hit rock bottom and there was a feeling that issues of bullying and harassment were continuing.

The Age

Defamation is only the tip of the iceberg according to lawyers who say social media-related challenges could range from workplace bullying claims to commercial disputes. A NSW District Court awarded a teacher $105,000 in damages in Australia’s first Twitter defamation battle. The court held that a former student had defamed music teacher by making false allegations about her on Twitter and Facebook. A Maurice Blackburn lawyer said it was inevitable that people would use exchanges on social media networks as evidence of bullying by co-workers or in the workplace. It was argued that social media posts viewed during wok hours could amount to bulling at work under recent changes to the Fair Work Act, even if the alleged perpetrator was not at work at that time.

PhysOrg

Research shows that workplace harassment is generally not an issue of personality conflicts but rather a reflection of the whole organisational system. However, further research found that the majority of harassment has been conducted at the individual level, with 85% of studies only including information from one data source, most commonly the victim. Given that up to 12% of employees may be exposed at any one time, the researchers are now calling for more research to be conducted to investigate the whole of the organisation in enabling or preventing harassment within workplaces.

Stuff.co.nz

An Australian public servant who says she was left mentally damaged when her boss told her she must work a standard five-day week has had a win in her legal fight for workers’ compensation. Ms Pettiford, a Centrelink employee, had been off work for two and a half years with an anxiety disorder since a meeting in 2011 where her manager told her that working hours of 8am to 4pm Monday to Friday were not negotiable. The Administrative Appeals Tribunal said that Centrelink acted unreasonably when it told Ms Pettiford in August 2011 that she would have to work the same hours as most of her colleagues. Ms Pettiford had worked at the Centrelink office for five years, mostly four days a week starting at 7am and leaving at 4pm. Her bosses were unhappy with the arrangement as it left the office without a psychologist one day a week. Previous attempts to resolve the impasses had failed and in 2010 the public servant had launched bullying allegations against her boss after the two disagreed about her working hours.

Business News Daily

New research finds that women face more hurdles and have fewer opportunities at work then men. A study in the Work Employment and Society journal discovered that women are paid less, and their jobs are less flexible and more stressful than men’s jobs. They also have fewer opportunities for advancement. The survey found that men were more likely to have job flexibility and have more opportunities for promotion, higher salaries, jobs that were more interesting and also had added job security. The research also revealed that women found their work more stressful and exhausting than men. The findings indicate that women enjoy hardly any advantage over men in the labour market.

The Australian

Australian women are doing an average of five hours unpaid work every day. International statistics released by the OECD on how men and women spend their time show Australian women spend an average of 311 minutes per day on tasks such as housework and shopping. Australian men in comparison spend 172 minutes or just under three hours on work around the house. Women are slowly closing the gap with men as more have careers, but there is still a huge gender gap in unpaid work. The burden of housework leads many women to work part-time.

The West Australian

A Coolgardie publican who yesterday apologised after she barred service to Aboriginal customers could be in breach of the Racial Discrimination Act. She put a sign outside her pub reading “No indigenous person will be served in the hotel” after her iPhone was stolen from the pub. The sign has since been taken. The police are looking into whether this sign would be considered racial vilification. Ms Ovens yesterday apologised for the sign saying it was an ‘emotional response’ to her phone being stolen.

Canberra Times

Canberra’s Tax Office letter bomber has won a battle against the government over his right to continue receiving worker’s compensation for its mishandling of a workplace love affair. Mr Dunstan sent 28 bombs in the post to colleagues and high profile figures in 1998. The crimes came after a turbulent romantic affair, with the woman known as Ms X, which took place over a number of years. The former ATO employee claimed he was left feeling suicidal and depressed after the woman sexually harassed and stalked him. He won a long-running compensation battle in 2012 when the Administrative Appeals Tribunal ruled the ATO had compounded his depression through its handling of the matter.

Courier Mail

A Gold Coast City Council boss sacked over a sexually charged love letter scandal is suing the council for almost $2 million. Mr Young has lodged the Supreme Court claim seeking massive damages for ‘mental anguish and distress’, lost earnings and alleged breaches of a secret settlement with the council after his dismissal. Mr Young was terminated from his job for sexual harassment in 2005 after allegedly penning sex initiations to council secretary Ms Shield and reporter Ms Buckingham. Mr Young will also bring evidence that he had been subjected to workplace harassment and that the alleged harassment was not investigated. He said he was diagnosed with a mental illness as a result of this repeated harassment.