May 2013

Weekly News
29 May – 5 June 2013

Smart Company:

Outlines 9 steps to take to protect businesses under new anti discrimination laws –
• Have a strategy, policy or process documented
• Identify areas of concern – for example where alcohol is being served at a work function
• Ensure all leaders are committed and educated to the process
• Share policies and procedures with all leaders
• Ensure employees know what to do if they have a grievance
• Ensure there is an independent hot line employees can call
• Ensure that it is clear when an issue will be elevated from an internal to independent investigation
• Ensure employee’s are well informed and made to feel safe at all times
• Disciplinary actions are taken quickly and effectively

CCH:

There are concerns about a culture of bullying and harassment inside AusAID after it was revealed its Comcare premiums increased by 855% in just six years. There have been 45 instances of bullying and harassment reported between 2007 and 2013 and almost 30% of these have required investigation.

Media Access Australia:

Michael Lockrey has petitioned the UN Committee on the Rights of Persons with Disabilities after he and the NSW Government failed to reach conciliation. Lockrey was summoned for jury service and requested live captioning for during the trial. After much correspondence he was excused from jury service, as the captioning would not be provided. Lockrey argued this was a breach of Disability Discrimination Act. If his petition were accepted then the Australia Government would be obliged to ensure that captioning is provided in courtrooms. Lockrey believes this is a breach of his rights by denying him to participate fully in society.

The Telegraph:

Graeme Innes said almost half of Australians with a disability lived in poverty and that the NDIS scheme was the best offer. It will allow them to move out of poverty into work and education and to contribute to society. It will help people like Dean Smith, who at 22 became paraplegic. He must now live in a nursing home where the other residents are all aged around 80 as there are no other facilities to support his needs.

DLA Piper:

In the case of Richardson v Oracle the Federal Court considered what an employer should have as acceptable workplace behaviour policies. The court was not satisfied that Oracle had taken all reasonable steps. Oracle made no mention that sexual harassment was unlawful under the Sex Discrimination Act. There should have also been a statement that Oracle was vicariously liable for employee’s actions. Polices need to be enforced and communicated to employees.

Yahoo:

Mr Ashby is appealing against the dismissal of his sexual harassment case. His solicitor is also appealing against the judge saying that the judgment contained serious adverse findings on his professional reputation. They have said that the case suffered because Mr Slipper represented himself and he was out of his depth and could not comply with requirements for procedural fairness.

Queensland Times:

Mental stress is costing Australian businesses more than $10 billion per year in lost work hours and productivity. Mental stress claims are the most expensive and often result in time off for affected workers. Workers with high levels of responsibility for the safety and well being of others are the most frequent claimants. Only 68% of mental stress claims are accepted which can be compared with an acceptance of 90% of non-mental stress claims. 22% of mental stress claimants point to harassment or bullying as the cause and 21% point to workplace or occupational violence.

Herald Sun:

Monash university students have caused frenzy in their ‘sexist campaign’. A student body decided to raise awareness of gender wage differences. They sold cupcakes charging men $1, 80c for women and 60c for transgender students attempting to highlight the issue. But a Facebook post has called the stall sexist. This was countered by saying that it was not sexist but an example of positive discrimination.

Lexology:

An employer was found to have discriminated against a job applicant by failing to offer him employment as a market analyst because of previous drink driving convictions. This highlights that employers need to be cautious when carrying out pre-employment criminal record checks. There is discrimination under law if an employer denies employment on the ground of a criminal conviction if the nature of the conviction does not affect the candidate’s ability to perform the inherent requirements of the job. However, was found not to be unlawful and the employer refused to pay compensation on the basis that he had not discriminated against the job applicant.

Huffington Post:

25% of adults admit to looking at porn on a computer at work. 70% of all online porn is acceded between 9am and 5pm. 2/3 of HR professionals have said they found porn on employee’s computers. An estimate suggests that porn can cost an employee over $500 000 in wasted time. Looking at porn in the workplace can also desensitize the viewer and lead to sexual harassment and violation of workplace boundaries.

The Register:

Ms Richardson’s case, the former Oracle employee, will return to court in an attempt to overturn a decision that Richardson must pay some of her harasser’s costs. The appeal also seeks a new damages award. Richardson was found liable for some her harasser’s costs because she rejected a pervious offer for a larger settlement, than the $18 000 damages. The Judge said this was unfortunate but his hands were tied by the law.

Lawyers Weekly:

New gender balance guideline aim to increase the number of women in senior leadership positions in Australian companies. They provide measurable targets for organisation’s gender composition, base salaries, promotion and bonus levels of workers by gender. In both the ASX200 and ASX500 women represent only 6% of line management positions and around 22% of support positions. Women account for less than 10% of Australia’s executive managers. Under the Workplace Gender Equality Act 2012, non public sector entities with 100 or more employees must report on gender equality outcomes with standardised data by 2014. Failure to comply will see employers named and shamed. Non-compliant employers may be barred from tendering for Government and some state contracts or from receiving grants and other financial assistance.

The Canberra Times:

There are ongoing investigations into the Federal Police Force after claims that there is a bullying culture. The AFP has ranked the lowest in terms of fair treatment and trust in management in law enforcement across Australia.

CCH:

The gender balance guidelines will assist Australian businesses to improve performance in relation to gender balance. Their aim is to achieve cultural change within organisation rather than simply ensure compliance with reporting obligations. The guidelines will –
• collect and analyse data on gender balance
• report on the current state of gender balance
• report on progress against measurable targets to improve gender balance outcomes

A link to the guidelines:

20 – 26 May 2013

ABC:

Rebecca Ramsay, a former Annesley College staff member has won a court action over termination of her employment. She told the South Australian Supreme Court she was sacked unfairly in 2010 over allegations of bullying and harassment and the school did not follow correct termination procedures. She said the dispute arose from petty jealousy. Blue J awarded in her favour, $47 000 damages, the equivalent for 12 weeks remaining on her contract.

ABC:

The Court of Appeal has ruled the owners of a central Queensland motel did not discriminate against a sex worker who was banned from the premises. Ms GK’s lawyers said that anti-discrimination laws have a long way to go to protect people who are engaging in lawful sexual activity. Sex work is a legal occupation in Queensland. GK fears that this decision will reinforce negative community attitudes towards sex workers and that it was acceptable to discriminate against them.

Herald Sun News:

Cassie Hanlin says she was made to feel ‘embarrassed and humiliated’ when a hairdresser refused to cut her hair while she was breastfeeding. Mrs Hanlin said her hairdresser walked away without a word as she began breastfeeding her daughter beneath the hairdressing smock. After 25 minutes waiting a junior assistant said she would take over. Mrs Hanlin decided to leave but was told not to remove the smock for privacy reasons. However, Todaro hairdressing said they did not have a problem with breastfeeding; the staff member had left her to breastfeed in peace and then fell beyond her schedule so asked a colleague to help out. Mrs Hanlin’s family have harassed staff and left the employee distraught.

News.com

The salon owners who refused to cut the hair of a breastfeeding mother have been put on notice. But industry figures have argued hairdressers should be able to refuse to cut hair while a mother is breastfeeding as it could put the baby at risk. The Victorian EOHRC said the onus would be on the salon to show they were behaving reasonably.

The Australian:

The Federal court has ordered RMIT to reinstate a professor who had been unfairly dismissed after complaining about alleged bullying and intimidation by her supervisor. The Court found that Ms Bessant had been vindicated and could be entitled to about $2 million in compensation is she weren’t reinstated. RMIT has also been fined $37 000.

*Inside Higher Ed

The Federal Court of Australia has ordered RMIT to reinstate a professor who was unfairly dismissed after complaining about alleged bullying and intimidation by her supervisor. Ms Bessant had been vindicated and could be entitled to about $2 million in compensation is she weren’t reinstated. The University’s own redundancy review committee had found that the dismissal had been unfair but that RMIT vice chancellor Margaret Gardner had been committed to making Besant redundant. Justice Gray said that RMIT had made use of its redundancy processes to rid itself of an employee who was considered troublesome.

The Telegraph:

Employees are threatening and intimidating their bosses in a new trend of reverse bullying. Female bosses and younger managers are bearing the brunt of this trend of upwards bullying. Scott McSwan, a solicitor, said these cases now accounted for about a quarter of workplace bullying cases and would only increase when new bullying laws came into force in July.

PR Web:

New data has revealed the extent to which LesbianGayBisexualTransgender people suffer harassment, discrimination, refusal of goods and services and violence because of their sexuality. 50% of respondents tested believe there are problems of varying degrees of severity for LGBT people in their own workplace. More than one in three respondents felt they were unable to completely be themselves with their colleagues at work.

Lexology

Bystander action is a new way of eliminating unacceptable behaviour in our society. Employers can use this to improve the culture of their workplace and reduce the risk of claims of unlawful discrimination and harassment. A 2012 report published by the AHRC looked into this issue. Statistics show that one in four women and one in six men experience sexual harassment. Research shows that bystanders often take sick leave from work or leave the organisation. By motivating staff to intervene before, during or after they observe sexual harassment or other inappropriate behaviour this should help to reduce it.

Time

Research shows that bullies reach a high level of career success. Most bullies are allowed to keep abusing colleagues because their bosses aren’t aware of their behaviour, because it goes unreported or because they successfully mask their behaviour. Bullies are often keen analyses and manipulators of social dynamics and reputations. They are very socially competent. They use bullying to coerce others into providing them the resources they need to achieve their work related objectives.

Gladstone Observer

Only 12% – 15% of people working in mining and construction are women. The AHRC has released a toolkit to help bring more women into these industries. Ms Broderick said increasing women’s employment could boost Australia’s GDP by 11%.

Herald Sun

More claims of bullying have been made against the Victorian police force.

English People’s Daily

Research by Diversity Council Australia suggests that Australian businesses fail to recognise and employ older women defined as 45 years and over. Older women constitute 17% of the Australian workforce with 45% of women over 45 in the labour force. This is substantially lower when compared with men. Age Discrimination Commissioner Susan Ryan said Australia is ignoring a huge pool of talent and experience. Dr Wilkins said about 480 000 workers suspected their employers had discriminated against them within the past two years because of their age.

The West Australian

A senior businesswoman says proposals to force companies to appoint more women to their boards risks creating a culture of compliance, resentment and mediocrity. Joanne Farrell says that positive discrimination has very negative connotations. She said focus should be on creating opportunities and adjusting attitudes.

CCH

The AHRC has release a new toolkit aimed at better engaging women in male-dominated industries. The toolkit covers attraction, recruitment, retention and development of women in industries.

A new guideline to assist compliance with Victorian EEO laws has been launched. This explains an employer’s obligation under the Equal Opportunity Act 2010 regarding discrimination against transgender people.

CCH

The FWC has dismissed an appeal, which alleged that an employer failed to have regard to an employee’s family responsibilities in amending its work roster. It held that the employer did have regard to all factors relevant to the rostering. The enterprise agreement imposed an obligation on Bunnings, when setting rosters, to have regard to five factors including family responsibilities. The language of the agreement did not suggest that any of the factors had greater or lesser priority. Bunnings did have regard to family circumstances by implementing a rotating roster.

13 – 19 May 2013

B&T:

Agency executive contracts increasingly have specific references to issues involving alcohol, drugs, bullying and violence. The inclusion of these termination ’for cause’ provisions attempt to remove the perception of heavy socialising and boozy culture in some workplaces.

The West Australian

Colin Barnett has been accused of sexism after calling a female opposition member of parliament ‘sweetie’. It attracted immediate censure in parliament and on social media where it was said that this was indicative of the broader treatment of women in the house. Mr Barnett has since apologised and agreed that the comment was inappropriate.

9 News

DisabilityCare Australia will cover 460 000 Australians when it’s fully operational. Every state and territory, bar WA has signed a deal with the Commonwealth to share the costs of a full disability scheme. The scheme is a response to the chronic underfunding and shortage of disability support services.

The Australian

The Fair Work Building Commission will have $6 million a year cut from its budget and redirected towards allowing the tribunal to start handling bullying complaints from workers from July. An estimated $21.4m will be injected into the commission to implement the government’s commitment to resolve the bullying complaints of workers.

CCH

An Aboriginal man in his fifties was not discriminated against on the ground of race or age when he was overlooked for promotion. The applicant (D) had worked for the NSW Office of Environment and Heritage for 30 years. D applied for a promotion for a position he had been acting in for some months. He was granted a ‘priority assessment’ interview. The interviewers assessed that D only met one of the selection criteria. The NSWADT concluded that D’s race or age did not form any part of the reason for failing to appoint him to the position. Rather, the decision appeared to have been the result of an erroneous assessment as to his capabilities.

Duncan v Chief Executive, NSW Office of Environment and Heritage (No 2) [2013] NSWADT 78

4 Traders

The Government will invest $47.2m to support Australia’s vulnerable workers, including $21.4m to help Australians who have been bullied and $25.7m to ensue that employers and employees have access to information about their rights and obligations. A Committee found that existing legal options for people who have been bullied are too complex and there is a need for a new process that is a faster and more affordable action to end bullying.

9 News

Australia’s disability discrimination commissioner Graeme Innes has welcomed the National Disability Scheme. However, he also said that people with disabilities didn’t need more employment services they required jobs.

The West Australian

Most Australian employers do not wish to discuss workplace romances. However, with an increase in people working late, and more social events there is a blending of work and personal lives. Companies should be aware that office affairs have an impact on everyone in the office. People start relating to those in the relationship differently, they don’t trust the people in the same way they did before.

Gay Star News

The NSW government has objected to the inclusion of intersex as a protected attribute in national anti-discrimination law. A report from the committee said that the bill would recognise intersex individuals are often the subject of discrimination in public life and that there is a need for protection. However, NSW recommends further consultation is needed before intersex can become a protected attribute.

CCH

The Federal Court’s controversial decision to award compensation to a worker injured during a motel room tryst will be settled by the High Court. The Federal Court ruled that an employer should have had no reason to expect that an employee might have engaged in lawful sexual activity while staying in accommodation it provided. The worker would have had to engage in gross misconduct to take herself out of the employment relationship. Whether or not the employer endorsed the particular activity was irrelevant, so long as this threshold hadn’t been reached. The High Court will most likely hear the appeal in August 2013.

News.com

A crackdown on ageism could inject $33 billion into the Australian economy by getting more seniors into work. Commissioner Ryan says age-based discrimination is the biggest obstacle facing seniors who want to work. She said that this would require a cultural shift in the way businesses regard older workers.

University of Buffalo

A study attempted to measure the relationship between being a bully and job performance. Despite resistance to bullying behaviours, many workplace bullies achieve a high level of career success. The study found that some workplace bullies have high social skills that they use to strategically bully their co-workers, yet still receive positive evaluations from their supervisors. The study found that measures of civility and camaraderie should be taken into account in performance evaluations.

6 -12 May 2013

ABC:

A new report suggests workers in the public sector are more stressed and exhausted than their peers in the private sector. Private sector workers suffer more from depression than their government sector colleagues. Public sector workers experience more work pressure, emotional demands, more bullying, harassment and work-life conflict. It is believed that in private sector workers have a closer relationship with their manager and rewards are not just monetary but are about appreciation.

Australian Financial Review:

Male chief executives with a deeper voice were paid $187 000 a year more than those with higher voices. Many people are also training to ‘shrink’ their accents to ensure acceptance and promotion at work. Discrimination on the basis of accent in Australia can leave employers and staff liable. In 2008 a Swiss woman complained to the Australian Human Rights Commission after she was told an advertised position was not available, when friends without French accents were told the position was yet to be filled. The employee was dismissed. Research has shown that a British accent is rated as more intelligent than an accent from Brooklyn or the US south and may lead to advantage at work.

SBS:

Disability advocacy groups have called on Myer to increase its disability employment to 10% by 2015. This was driven by Myer’s CEO Bernie Brooks comments that the levy to fund the NDIS hits the retailer’s bottom line. They have now been asked to show a real commitment to people with disabilities.

BRW:

To get ahead at work you not only need to be smart, you have to be beautiful too. It has been found that if your rise depends on being anointed by a boss those who are pleasing to the eye have the advantage on those who are equally, if not more, talented. Tall and attractive men get promoted faster and paid more, but women who are pretty face a disadvantage when trying to climb above the lower ranks of an organisation. A US-Dutch study found that women who are unattractive and overweight are the most discriminated against in the employment market.

CCH:

The Committee for Economic Development of Australia will report in June on why women continue to be under represented in leadership roles and paid less than their male colleagues.

Smart Company:

Victoria is trialling a pro bono scheme to provide independent legal advice to self-represented employees or employers in unfair dismissal cases. Self-represented litigants almost always get a hearing that is longer than usual.

Courier Mail:

A manager demoted for sexual harassment will be retrained and returned to work alongside his complainants. The Queensland Ambulance Service employee was awarded a penalty, where he was to be demoted to a base grade position, which is a significant reduction in his salary. QAS will also provide retraining, formalised continuous supervision and a Performance Improvement Plan to ensure there is no recurrence of such behaviour. However, many of the complainants are unhappy about his return to work.

Yahoo:

A Virgin airlines passenger said that attendants treated him like a sexual predator on a flight to Sydney. The flight attendant asked him to move saying he was not allowed to sit next to children because he was male. She tried to find a female to swap seats with him. Barrister David Gallbally says this policy is discriminatory towards men.

West Australian:

Graeme Innes has called on the State Government to change legislation to prevent the incarceration of intellectually disabled people who are deemed unfit to stand trial. This comes after it was revealed that Mr Noble was jailed for 10 years with being tried or convicted.

The Australian:

Workplace bullying will get a $20 million boost in Federal Budget. This will allow the Fair Work Commission to take on its new role from July 1.

Lexology:

Mr Matthews was the CEO of the Shire of Shark Bay Council and was diagnosed with Hepatitis C. Mr Hargreaves was a member of the Council who did not get along with Mr Matthews. Mr Hargreaves sent an email to their colleagues saying he believed Mr Matthew had hepatitis C. Mr Matthews filed a disability discrimination case against Mr Hargreaves. The claim was held to be unsuccessful because a deed of settlement prevented Mr Matthews from making another claim against Council. Employers must keep sensitive medical information confidential.

Border Mail:

Doug Sharp of Wangaratta Council will take leave for up to three months after he reported 23 claims of bullying and harassment of council staff by Mr Fidge. An external investigator was called in and said that 21 of the complaints had been substantiated. He has asked that Mr Fidge be stood down while the investigation takes place.