November 2013

25 – 01 December 2013

The Lawyer

Safe Work Australia has released its draft Code of Practice on Preventing and Responding to Workplace Bullying. The bullying guide will not have the same legal force as a code of practice, but it will set a national benchmark for managing workplace bullying. They also released a separate worker’s guide, which will influence employee expectations around how organisations should respond to bullying complaints.

SBS

A NSW woman is alleging her employer would not let her come to work wearing a hijab. Ms El Hassan had been working for an accountancy firm for five years when she advised her employer she wanted to start wearing a headscarf. However, she was informed that she could not come into work wearing the hijab. The firm says it will not be making any comment on these allegations and the matter is expected to go to mediation next month. The only defence to discrimination on religious grounds is that the inherent requirements of the position require the discrimination to occur. It is difficult to see how this would apply to wearing a hijab.

WA Today

Attorney General George Brandis believes that certain provisions in the RDA are unfair and unduly restrict freedoms in expressing non-politically correct views. The new government’s action on the Act is taking place without talking to the people who are affected by hate speech, name-calling and vilification. The success of the provisions of the RDA includes making a statement on the behaviour we expect of all citizens and making sure that visible minorities can defend themselves, not with fists but with the law.

Newsmaker

Catherine Gillespie, Managing Director of Workplace Conflict Resolution, welcomed new guidelines issued by the FWC last week but said that the impact of the measures on business was still unknown. She said the legislation is well intentioned but, with much of the language open to interpretation, the way in which workers make use of new complaint channels will leave many businesses exposed.

Herald Sun

The Governor General Quentin Bryce has flagged her support for gay marriage. At the launch of Beyondblue’s guide for families of lesbian, gay, bisexual and gender diverse people she spoke of the dangers of discrimination against gay people. Her comments have drawn fire, with some arguing she overstepped her role by voicing her opinion on a sensitive political issue.

4-Traders

Australia’s professional workers say a combination of office bullying, inability to use office technology and social media are key factors preventing them from being more productive. One in 10 professionals cite bullying from other colleagues or their managers as a top productivity killer. Office professional have on average, a daily-unrealised productivity capacity of 26%. Almost half of Australians say they use social media during work hours, of which one in six are diverted from work up to 10 times a day. The report also found that in the workplace bullying is often subtle and comes in the form of dismissive behaviour intended to intimidate colleagues, language which is aggressive and behaviour which demeans.

Mining Australia

In a claim before the Rockhampton Supreme Court an Indigenous woman alleges her co-workers subjected her to intimidating behaviour and bullying during her work at the site and is seeking $1 million in damages. Jellinbah Resources says it is committed to ensuring workers at its mines receive support in the face of bullying. The woman worked as a dump truck driver between 2010 and 2011. According to her claim she was often the brunt of racial taunts, sworn at and humiliated by other workers. In one instance she has alleged that co-workers threatened to push her truck off a steep embankment while she was in it. The woman is suing Jellinbah Resources and a contract company on the grounds of negligence and a breach of duty of care. She has been unable to return to the mining industry due to her psychiatric injuries.

Daily Telegraph

A café workers who was sexually harassed has been awarded more than $138 000 in damages. The woman’s boss has been found vicariously liable and ordered to pay the majority of her damages. He was also found to have victimised her because he fired her and failed to act on the sexual harassment. The Federal Circuit Court heard Mr Vekiarellis propositioned Ms Alexander at work and told her that if she had sex with him then she would get more shifts. He also touched her bottom, asked her about pornography and made inappropriate remarks about her clothing. Mr Capello, her employer, dismissed her when she complained and told her ‘just let it go, there are lots of other jobs out there.’ The court found Mr Capello liable because he was Vekiarelli’s employer and did nothing to stop the sexual harassment once told.

News.com

A WA school was forced to apologise over a racial discrimination complaint lodged by a family whose child was told their hair was untidy. The child’s mother argued that because of her child’s mixed cultural heritage, the child had naturally curly hair. She pulled the child out of school before lodging the complaint with the Equal Opportunity Commission. The school apologised over the incident and agreed to change its hair policy. The incident is among a growing number of complaints lodged by young West Australians.

WA Today

November 26 marked the one-year anniversary of the establishment of the Defence Abuse Response Taskforce, which was established to rid the ADF of all forms of abuse. 2400 complaints were received and allegations dated back to the 1950s, ranging from workplace discrimination, harassment and bullying to the most serious cases of physical or sexual assault. The taskforce has provided counselling for 43 people and referred 18 cases to police for criminal investigation. The independent assessor has approved reparation payments totalling almost $7.37 million. By the end of the week all information and documentation will be collected from complainants. This will allow the taskforce to analyse the information to identify systemic issues.

Smart Company

Baby boomers are more distracted at work by social media then Gen-Y. The survey found that of Australian workers who are unproductive, the biggest productivity killer cited by employees was not knowing how to use workplace technology. Each age group had different top reasons for lower productivity. 13.1% of Gen Y workers said bullying from a manager or a colleague, while 12.3% said they didn’t know how to use the technology they have. From Gen X 10.6% said they didn’t know how to use the technology and 8.9% said they were spending time organising their social calendar. For baby boomers 10.1% said organising their social calendar was the biggest productivity killer.

Top 10 productivity killers:
1. Don’t know how to use the technology I have
2. Bullying
3. Organising social calendar
4. Social media
5. Don’t like their job
6. Poor manager
7. Too qualified for the job
8. Too much work
9. Don’t know what they are supposed to be doing
10. Boring job

Smart Company

The Christmas season is a good time for employers to start thinking about mental health in the workplace. Workers are often stressed about competing demands and employers should learn about the risks and protective factors relating to mental health and then apply that knowledge to the Christmas period. Employers should also consider that this is school holidays and for people with kids, juggling work can be stressful. Employers need to be more flexible around this time of the year.

Smart Company

3 Australia Post employees fired in 2010 for sending pornography at work have been reinstated by the FWC. This ruling follows an earlier ruling in September that found they had been unfairly dismissed from their positions, this was centred on the finding that there had been a culture of tolerating such behaviour in the past. The FWC also said that emailing pornography to a friend or willing recipient is ‘objectively a less serious breach of policy’ than emailing that material to an unwilling recipient in order to harass them. The manager of the 3 employees gave evidence saying he believed it extremely unlikely the three would bring porn to work again. The FWC held because of their misconduct they should not receive the bulk of their back pay. Australia Post has challenged the ruling in the Federal Court.

18 – 24 November 2013

The Border Mail

The NSW Environment Protection Authority is riddled with workplace bullying according to a public sector report, although most incidences are going unreported. One staff member has complained of intimidation and physical violence by an EPA supervisor. The report found that almost a third of staff had witnessed bullying at work in the past 12 months. Six percent said they were currently experiencing this behaviour. However, only 3 complaints of bullying have been made against managers in the last 12 months. Two complaints were investigated and it was found that there was no evidence to support the allegations.

Pro Bono Australia

Flexible working is no longer considered the key to gender equality in the workplace. A survey at the Diversity Council Australia’s Annual Debate found that 60% of the participants felt that getting more women into leadership positions was a higher priority. However, flexible working should not be ignored as a pathway to gender equality. Other important factors include addressing gender pay equity and sex-based harassment and discrimination.

SBS

George Brandis, Australian Attorney-General, has been criticised for his proposed changes to the Racial Discrimination Act (RDA). The AG wants to amend s18c, which makes it unlawful to publish material that offends or insults an individual or group because of race, nationality or ethnicity. It’s not clear yet exactly how the Act will be changed but it’s likely some of the more stringent aspects will be removed, making it more difficult to breach the RDA.

News.com

A senior bureaucrat, who was reprimanded about his inappropriate use of state government email several years before, has been dismissed for accessing porn at work. The man, who is not named, sent an email of topless women to around 40 colleagues to wish them Merry Christmas. The man was counselled after this and assured his superiors that there would be no more inappropriate use of email. However, through 2010-2011 he sent and received almost 150 pornographic emails at work. More than 1000 explicit images were deemed to be at the serious end of the pornography spectrum. He was then dismissed in May 2012. He launched action over his ‘harsh, unjust or unreasonable’ sacking. IRC deputy president Karen Bartel ruled the sacking was within the range of reasonable responses.

The West Australian

The gap between the number of working men and women is higher in WA than anywhere else in Australia. WA also has the biggest gap in labour force participation at 15.2%, compared with the national average of 12.1%. Although WA women have a slightly higher labour participation rate than the national average. WA’s mining heavy economy has been blamed for the gender wage gap, which sits around 26.9% (compared with the national average of 17.5%).

Thomson Reuters

The FWC has released documents on how it will handle its new anti-bullying jurisdiction. Justice Ross has said that the new jurisdiction is not an avenue to provide compensation to those who have been subjected to bullying and nor is it about penalizing employers. The FWC must start dealing with application within 14 days of filing in an effort to streamline the process.

The Age

The Defence Department has won a costly victory in its war on the degradation of women with an air force bureaucrat sacked over email porn winning a five-figure compensation payout. Fair Work ordered the payout after finding the department was right to sack ‘Mr X’ but the process was harsh and unjust. Mr X told the tribunal about an established culture in the Defence Department of exchanging emails ranging from mildly humorous through to the more sexually explicit. Mr X was found to have sent an email to 15 of his colleagues, including a slideshow of a naked woman that was found to be ‘lewd, pornographic and demeaning of women’. It was clearly in breach of Defence policies. He was also found to have more material stored on his computer.

Pro Bono Australia

Mission Australia has called for more investment in young women entering the workforce after COAG’s report showed women and girls lag behind their male counterparts after leaving school. The report shows that although girls generally outperform boys at school they are less likely to transition from school to full engagement in work and education.

Smart Company

A COAG Reform Council report has found that women in the workplace are still at a disadvantage. Childcare costs act as a disincentive for women to work full-time and contribute to a gap in retirement savings worth about $207 000. The report also found that women under 30 also tend to have higher qualification than men of the same age. Women filled 3% of top-ranking chair and chief executive positions at ASX 500 companies, which means only 12 women held the role of chief executive at the top companies. Female directors on boards were better represented at 9.2%. The COAG Chairman said this reflected a bias against choosing women for roles.

Smart Company

Victoria is the ‘worry state’ when it come to OSH issues, despite it having a lower rate of serious workplace injuries than other states. A survey found that 42% of Victorians were extremely concerned about injuring themselves at work. It is argued that this is a sign that public awareness campaigns have been effective. This concern is a positive thing as workplace issues at the forefront of people’s minds. WorkSafe has just launched a campaign urging Victorians to be safer at work as the festive season draws near. This is the most dangerous time of the year for workers as people become less focussed.

Illawarra Mercury

Mariam El Hassan told her boss that from October she was going to start wearing the hijab to work. However, her request to wear the scarf was met with deferral and then refusal, with her boss saying ‘I’m not going to have you wearing that out the front.’ She was then told not to come to work on the day she had decided to start wearing the headscarf and was forced to resign. However, the employer’s lawyers said they had done what they could to accommodate Mrs El Hassan. Mrs El Hassan has lodged a complaint with Fair Work claiming the company discriminated against her and took adverse action, leading to her resignation.

11 – 17 November 2013

The Local

In northern Sweden a widow has taken a landmark case against her husband’s former employer claiming that his suicide was caused by bullying in the workplace. She said that his mood deteriorated after he got a new boss who she claims was not happy with her late husband’s work. Her husband was 53 when he took his own life. She took her case to the District Court and two bosses are now faced with a charge of a work environment crime.

News.com

Taxpayers have paid out millions of dollars to bullied and harassed bureaucrats in the South Australian Education Department. Official figures show dozen of government officials have been awarded more than $6.56 million in Workers Compensation claims since 2010. Authorities said the payments were made to staff working within the bureaucracy who had suffered bullying or harassment from colleagues, students or parents.

The Guardian

This week there has been discussion about whether the Bolt laws should be repealed. These laws make it unlawful to offend and insult people because of their race. However, this move has been criticised because it tells radicalised minorities in Australia that the right to vilify them is more important than their right to be protected from racist insults.

Women’s Agenda

According to the Fair Work Ombudsman’s Annual Report pregnancy discrimination is now Australia’s number one complaint against employers. Sally Killoran has come forward and said she started being treated differently by co-workers as soon as she got married, let alone fell pregnant. She said that a year after she was married she went for an interview and the CEO commented on the fact that she was married, stating they expected a full three-year commitment. She said this was the case with several interviews she attended. This made her feel like having a child would render her career null and void.

Smart Company

In the final days of the Labour government, a plea for an exemption to anti-discrimination laws was sought to let the federal government continue to use a wage assessment tool which discriminates against some people with an intellectual disability. The new federal government as continued to seek this exemption.

Herald Sun

Clive Palmer has been accused of mocking voters and belittling loyal managers at his resorts. A former bodyguard has come out and said that Mr Palmer had exploded with foul abuse at staff, falsely accused managers of being lazy and thieving and privately mocked voters.

Women’s Agenda

Flexible work is certainly important in creating more equal workplaces but it certainly isn’t the key to gender equality more broadly. In fact flexible work may actually lead to greater inequality in the workplace because the majority of employees who currently access flexible work arrangements are women and it could even reinforce the gap between men and women in the workplace. Flexible working can also mean career death when it is assumed to signal that an employee is not career focused and lacks commitment. However, there is a strong argument that if there is no equality in caring we won’t get equality in paid work. It is only if conditions are right that equality will occur and flexibility will then allow for a 50:50 split of parenting and work.

Smart Company

A cultural difference has led to the operators of a Victorian discount retailer being fined more than $53,000 for cutting the hours of a pregnant employee. The pair from GV Bargains were fined a total of $40 920 and ordered to pay the employee $7197 for her economic and non-economic losses. This is the largest penalty achieved by the Fair Work Ombudsman. When the employee told her employer she was pregnant she was directed to take two weeks of unpaid leave and when she refused her hours were cut by half. When she asked for more hours she was instructed to look for another job. The employer said that it was tradition in China for women not to work when they’re pregnant and that she did not want the employee working in the store. It is unusual for someone to try and justify discrimination based on a cultural misunderstanding.

Smart Company

Australians this year are more likely to report they are feeling stressed and anxious. Workplaces were a significant source of this stress, with many workers saying they did not feel supported in the workplace. Men were more likely to say this was the case than women. Working women were also significantly more likely than men to say their employers were supportive of family matters. There is a significant gender difference within the results when it came to causes of stress. For women the leading cause of stress was family issues. For men, the leading cause of stress was financial concerns.

CCH

A recent Fair Work Commission highlighted the significant challenges and risks facing employers when seeking to terminate employees suffering from mental illness. The Commission found that a public hospital unfairly dismissed an employee from his audio-typist position on the basis of his mental illness.

Australian Mining

Contractor Downer EDI Mining has secured an exemption from anti-discrimination laws, which allows it to advertise for 50 women-only truck driving positions a year. By granting the exemption, the Queensland Civil and Administrative Tribunal is permitting the mining contractor to specifically recruit female entry-level operators. Downer EDI said they were trying to improve gender balance and break stereotypes around gender and occupation. Currently only 14% of the company’s workforce are women. It is hoped this will lift to 25% by 2020.

04 – 10 November 2013

Australian Financial Review

The Business Council of Australia is pushing radical measures to promote women into senior executive jobs, including regular testing of chief executives and board members for unconscious gender bias and female only hiring short lists. The members of the business council have committed to having 50% of their senior roles filled by women in the next decade. The changes include promoting women earlier in their careers, expanding existing executive teams so women are included, and filling vacancies with interim appointments until a qualified woman is found. Senior leaders will be encouraged to share their results on their own unconscious bias and have their bonuses riding on their performance in achieving gender diversity. Although this is an interventionist approach Peter Wilson from Australian Human Resources Institute says it needs to be. It will be up to individual companies to decide if they will implement the measures. However companies that miss the 50% female target by 2023 would be given further resources rather than penalised.

Sydney Morning Herald

Employees who face the sack could exploit new laws to stop bullying by taking their manager to the national workplace umpire. The laws allow employees who believes they are being bullied by ‘repeated unreasonable behaviour’ to apply directly to the Fair Work Commission. The commission must then deal with the complaint within 2 weeks. Under existing laws, those who believe they are bullied at work must try to resolve the issue internally. Businesses believe that this current system is adequate.

News.com

Pregnancy has overtaken disability as the top discrimination complaint in Australian workplaces. More people believe their family responsibilities see them treated differently by their bosses. It is the first time pregnancy has formed the majority of complaints. Workers made 235 complaints to the agency; 28% from pregnant women, 21 % from people with physical or mental disabilities and 11% from those who felt their family or carer responsibilities resulted in them being treated differently. Complaints included being sacked, passed over for promotion, denied training and receiving inappropriate comments after they revealed they were expecting.

Newcastle Herald

A NSW parliamentary inquiry into the bullying at Central Coast WorkCover is scheduled to take place this week. The committee has made 90 submissions partly public and almost all contain allegations of workplace bullying at WorkCover. One employee who worked at WorkCover said she was terrified to tell them that she was injured at work. She said that since being injured she has experienced increased bullying and discrimination a work. The Butler case made headlines in June when the NSW Industrial Relations Commission ordered WorkCover to re-employ Mr Butler after it dismissed him following a scurrilous and malicious campaign to persecute him. This follows a 2011 PriceWaterhouseCoopers report found 40% of WorkCover staff reported being bullied or harassed.

Smart Company

Australian businesswomen have revealed that an extended break from work does not always have a negative impact on their future career. A survey of 115 state and territory finalists at the Telstra Business Women’s Awards found over half, 55% said that taking time out could be positive. They reported that it allows for time to reassess life goals and career goals, while 87% agreed that parental leave could be a catalyst for launching their own business. However despite this older issues remain prevalent. 89% of respondents say women face challenges when returning to work after a career break. 40% of women find it hard to return to the workforce.

News.com

Unions are compiling a shame file of bosses who have mistreated pregnant staff. This includes a bakery worker who gave birth prematurely when forced into hard labour. She was made to scrub the floors and push heavy trolleys, despite three medical certificates requesting lighter duties. Sex Discrimination Commissioner Elizabeth Broderick said that motherhood can still be a career killer for Australian women. The Unions will submit this file to the inquiry into discrimination against pregnant women.

Women’s Agenda

In 2011 Australians were outraged by reports that two young men in the ADFA had been involved in an incident where a man had secretly filmed himself having sex with a young woman and broadcast it via Skype. Last month these two men were sentenced to 12-month good behaviour bonds. Yesterday the sentence to a similar incident in the NSW police was handed does. An officer showed the ‘highlights’ reel from his secret camera hidden in an alarm clock. He filmed himself having sex with three women. He received 200 hours community service. This raises the question of what were the men who were watching this is the workplace thinking? None of the men in either instance stood up and said that this was unacceptable behaviour. The sentences of both these men suggest that we aren’t willing to put people in jail for this behaviour.

CCH

Resource industry employer group AMMA has called on senior leaders in the mining, energy and allied construction sectors to support gender diversity. AMMA has launched a national education campaign to boost competitiveness and productivity. The campaign promotes top-down leadership focusing on gender diversity.

The West Australian

The female army cadet who was filmed having sex without her knowledge is claiming Defence degraded her following the incident and hopes suing the department will force it to change its attitude towards women. Kate alleges Defence not only failed to support her but also actively tried to discredit her name, including most seriously by leaking her personal medical records to the press. Defence has vigorously denied these claims. She is expected to take her complaint to the Human Rights Commission within days in a bid to seek compensation. Kate said the recent sentencing of the offenders set a scary example and would deter other victims of sexual assault from coming forward.

The Australian

Some of Australia’s largest companies have agreed to step up pressure on their suppliers to improve their promotion of women as part of recommendations issued by the Male Champions of Change group. The report contained 12 recommendations. Elizabeth Broderick said that what is critical here is engaging leaders, people and suppliers who demonstrate and demand the inherent strength that comes from diverse teams. It engages leaders to make sure they consciously consider the best female talent for new roles as they arise.

Smart Company

A Victorian small business has been ordered to pay a former employee for lost wages along with penalties after it refused to comply with a Fair Work Commission ruling. Ms Meadley, who claimed she had been fired from her role after she complained about a reduction in her shifts, originally brought the claim. Gippsland Waste said it had fired her for failing to attend a meeting about bullying allegations made against her. The fair work Commission said that the evidence did not support the complaint that Meadley had bullied two employees and that her termination had been unlawful. Due to an irreparable breakdown in the relationship she was not reinstated.

ABC

New data reveals 74 incidents of workplace violence or serious injuries involving ACT emergency service workers over the past two years, including17 incidents over the past two financial years of workplace violence where a paramedic was assaulted verbally or physically. Paramedics were punched or kicked by patients. Injuries ranged from a cut finger to workplace bullying. But Ambulance Service acting deputy chief, Howard Wren, says ambulance staff are encouraged and supported to report incidents of verbal and physical abuse. He says the Ambulance Service does all it can to protect its workers, but unfortunately some workplace violence is inevitable and it is not only related to patients who are intoxicated or on drugs.

ABC

Retired workers who are trying to re-enter the workforce find this is increasingly difficult. Australian Bureau of Statistics figures show about one third of older people who have given up looking for work say it is because employers think they are too old. 68% of all age discrimination complaints to the Human Rights and Equal Opportunity Commission in Australia are about employment. We lose over $10 billion a year by having people unemployed who could be employed were it not for age discrimination.

ABC

Australian Sex Discrimination Commissioner has described the prevalence of sexual harassment in rural Australia as ‘deeply troubling’ A recent survey found that 73% of rural women reported experiencing sexual harassment and 93% of women in agriculture have experienced workplace harassment. Ms Broderick said she was shocked at how high the figures were, although she did acknowledge that the sample size was relatively small. Ms Saunders who conducted the survey says the nature of harassment ranged from exposure to explicit pornography in tearooms, to groping by male co-workers and rape.