What’s been happening in Australia in relation to sexual harassment, discrimination, and bullying from 06 May 2024 – 12 May 2024

Is raising your voice at a worker considered bullying? The Fair Work Commission (FWC) recently dealt with an application made by a worker for an anti-bullying order. The worker, an employee of Yarra City Council, contended that at various times from September 2023, he was subjected to bullying by his employer and its infrastructure manager. The […]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination, and Bullying from 29 April 2024 to 05 May 2024.

One in seven people admit to using technology to sexually harass colleagues at work

New data from Australia’s National Research Organisation for Women’s Safety (ANROWS) has revealed that one in seven people are using tech platforms to sexually harass their colleagues.

More than 3,000 people across the country were surveyed, with men more than three times more likely to harass their colleagues using work email, social media, and text. Perpetrators frequently admitted to doing this to humiliate and frighten their targets, rather than to engage in a sexual relationship with them. Young people and women were particularly at risk of this kind of harassment, with work and personal emails and phones most used by perpetrators. 

According to the Australian Bureau of Statistics, 26% of women who experienced sexual harassment did so at work, with 57% subjected to it electronically.

Reducing sexual harassment in the workplace is a key element of the national plan to end violence against women and their children. The government’s plan aims to end it within a generation but has not specified a more detailed timeline for when targets need to be met. 

How employers can prepare for workplace laws coming in August 

New regulations which are effective from August 26 this year further determine whether someone is a contractor compared to an employee. The change comes as part of the second tranche of the Fair Work Legislation Amendment (Closing Loopholes Nº 2) Bill 2023.

The importance of this Bill is to determine whether someone is genuinely employed as a contractor. If a person engaged to provide services doesn’t have to do so personally but could employ someone to provide the services or subcontract it to someone else, and if the contract enables that to happen, then that person is a contractor rather than an employee. There are financial risks for employers if a person makes a claim in court and was found to have been an employee, instead of a contractor.

Preparing for the ‘Right to Disconnect’ 

Employees will soon have the right to refuse to monitor, read or respond to contact (or attempted contact) from an employer outside of working hours – unless that refusal is unreasonable. This right extends to contact from other employees, suppliers, clients or other third parties if the contact relates to the employee’s work. The right applies to all forms of contact including, for example, phone calls, emails, text messages and Teams messages. 

This right to disconnect is effective from 26 August 2024 for many Australian workplaces. For small businesses, the new laws will commence on 26 August 2025. The new laws do not mean that all employees will have a blanket right to “disconnect” from any contact outside their working hours. The critical question is whether the employee’s action to refuse to monitor or respond to contact is unreasonable. Determining whether an employee’s refusal is unreasonable will need to be assessed on a case-by-case basis and must consider several factors, including: 

  • The reason for the contact or attempted contact
  • How the contact is made and the level of disruption it causes for the employee
  • The extent to which the employee is compensated to remain available or perform work in addition to their working hours – including non-monetary compensation such as additional leave, flexible work arrangements or other rewards
  • The nature of the employee’s role and responsibilities
  • The employee’s personal circumstances, including any family or caring responsibilities.

If contact is required under a law of the Commonwealth, State or Territory, it will be unreasonable for an employee to refuse contact. Otherwise, there must be an assessment of the unreasonableness of the employee’s refusal to determine whether they can lawfully “disconnect.” Importantly, the new laws do not mean that employers cannot contact an employee outside of their working hours – or that they will be acting unlawfully by doing so – rather, there is now to be a determination about whether an employee’s refusal is unreasonable or not. Here are some key factors that might help to comply with the new rule: 

  • Review any current practice of employees’ work activities outside of ordinary working hours and consider if changes are required.
  • Review employment contracts to determine whether they require updating and review existing flexibility arrangements to ensure that they are current.
  • Prepare or amend policies regarding the use of work technology outside ordinary working hours.
  • Audit position descriptions to ensure they clearly reflect expectations regarding outside hours contact.
  • Conduct training for managers and employees to ensure understanding of the expectations in the workplace and the new right and to promote wellbeing of employees and minimise the risk of adverse action claims.
  • Communicate with third parties (such as clients or suppliers) regarding expectations about responses from employees out of hours.

Labor MP Darren Cheeseman resigns over ‘inappropriate behaviour in the workplace’ 

Victorian Labor MP Darren Cheeseman has resigned as Parliamentary Secretary for Education over allegations of “persistent, inappropriate behaviour in the workplace towards staff”. Premier Jacinta Allan confirmed in a statement that she had sought Cheeseman’s resignation.

Cheeseman has served as the member for South Barwon since 2018. The Premier said Cheeseman had agreed to resign but would remain a member of parliament and a member of the parliamentary Labor Party. 

Rebel Sport’s Owner Denies $50m Bullying Claim, Undisclosed CEO Relationship 

The board of Rebel Sport owner, Super Retail Group, has denied bombshell allegations of an undisclosed relationship involving its chief executive, Anthony Heraghty, and bullying claims that are expected to form the basis of a $50 million lawsuit. An investigation will reveal out who is telling the truth. 

New CALD Employment Strategy and Action Plan 

The Australian Public Service Commission (APSC) published the Culturally and Linguistically Diverse (CALD) Employment Strategy and Action Plan on 30 April 2024.  While the APS broadly reflects the cultural and racial diversity in Australia, representation drops sharply at senior levels. CALD APS employees report higher levels of discrimination and racism. 

The APSC consulted widely with multiple stakeholders, including APS employees and external organisations, to understand the workplace experience for Australians from CALD backgrounds in the APS. In late 2023, the APSC circulated these results and a toolkit of proposed actions for public consultation. The Strategy draws from the insights gained from the consultation process and proposes key actionable items for APS agencies to follow and implement. The overall objectives of the Strategy are that the APS: 

  • Ensures a safe, fair, equitable and inclusive workplace that is free from racism, discrimination, bullying and harassment.
  • Understands and builds on the diversity of the current workforce.
  • Enables people to make a full contribution and empowers them to fulfil their potential.
  • Creates a level playing field and a fair go for all APS employees.
  • Builds representation of CALD employees at senior levels.

Commissioner apologises after border force review finds widespread sexual harassment and discrimination among marine ranks

Australian Border Force (ABF) Commissioner Michael Outram has apologised to female staff within its marine unit, after a review found widespread sexual harassment and discrimination within it. 

A workplace review of the marine unit has found harassment and discrimination are so widespread, “immediate intervention” is needed to make it safe for the women working there. A survey of staff within the unit found every woman surveyed had witnessed sexual harassment or discrimination, and nearly all had experienced it directly.  

The Australian Human Rights Commission was tasked with looking into the unit as part of a five-year long project investigating workplace culture across the ABF. A summary of a review into the ABF’s marine unit, which has not been released publicly but obtained by the ABC, found a “significantly high prevalence” of inappropriate behaviour. 

The report placed the burden of responsibility for change directly on the ABF’s leadership at all levels — from officers in command on vessels, through to the top of the force. It said ABF leadership should be held directly accountable for cultural problems, calling for “defined consequences” for leadership failures. 

Worker dismissed after responding to criticism of his performance 

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who claimed he was unfairly dismissed from his employment. 

The employer’s managing director dismissed the worker after the former’s subordinates reported that the latter quit during a meeting to discuss his performance. They also described him as “agitated” and “emotional”. The worker argued that his employment was terminated at the initiative of his employer, while the company maintained that the worker had resigned from his position. The worker was employed by the company as a warehouse and freight handler from June 2023 until January 2024. 

On January 25, 2024, the worker attended a meeting with his managers to review his performance. During the meeting, the worker became increasingly agitated, raising his voice and expressing his frustration. According to records, it was during this moment that the worker said words to the effect of “I don’t want to work at [the company] anyway” and “I don’t want to work with these conditions.” The managers present at the meeting described the worker’s manner as “aggression, anger,” “frustrated and annoyed,” and “defensive, angry.” The meeting ended shortly after, leaving the managers with the impression that the worker no longer cared about the business.  […]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 18 September 2023 – 24 September 2023

Bonuses and Pay Rises Can Be Withheld from Employees and Managers Employers will be able to withhold bonuses and pay rises from managers and employees in order to prevent sexual harassment and discrimination in the workplace. From December, employers have a positive duty to prevent sexual assault, harassment and similar discriminatory behaviour. The legislation shifts[…..]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 4 September 2023 – 10 September 2023

WA Statistics Related to Sexual Harassment Complaints In the 2022-23 reporting year the Commission received 31 complaints of sexual harassment in employment, 24 of those were from women. In the complaints received, women told of constant sexualised comments, supervisors trying to kiss them at work functions and receiving a sexualised Secret Santa gift from a[…..]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 27 February 2023 – 5 March 2023

Woodside Dismisses Twelve Workers for Misconduct On Monday, Woodside Energy released its 2022 annual report, which provides the results of completed investigations into workplace misconduct. The report reveals that 36 investigations were conducted, resulting in the termination of six employees and six contractors. Further, of these investigations, seven cases were related to sexual harassment and[…..]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 23 January 2023 – 29 January 2023

Virgin Airlines Overturns Unfair Dismissal Decision by the Fair Work Commission Virgin Australia has successfully overturned a decision made by the Fair Work Commission last year in relation to an unfair dismissal case of a former employee. The Full Bench of the Fair Work Commission found that the previous decision dismissing DeVania Blackburn did not[…..]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 21 – 27 November 2022

Important Inquiry Shines a Light On Transgender And Gay Hate Crimes The recent mass shooting in Colorado that targeted LGBT+ individuals has aligned with the first week of public hearings for an inquiry into historical hate crimes against the LGBTQI+ community in NSW. The inquiry will examine hate crimes from 1970 to 2010. It is[…..]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 7 – 13 March 2022

‘Tired Of Empty Promises’: Powerful Women Join Forces For Change On Sunday 6 March, a dozen Australian, female leaders were featured in a letter and video addressed to the Australian public. Among the leaders were Grace Tame and Brittany Higgins. The message was that it is time to end injustice and inequality. This is paired[…..]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 17 – 23 January 2022

‘Rude And Disruptive’ Employee Loses Bullying Claim An employee’s recent application for unfair dismissal based on bullying allegations was dismissed on the basis that his manager’s behaviour constituted reasonable management action. The employee was an account manager tasked to manage business customers. He was subject to performance indicators, including a target number of calls to[…..]

What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 6 – 12 December 2021

MP Hails Action on Assaults Deputy Liberal leader, Libby Mettam, has spoken out on the sexual harassment within the mining sector. She said she is happy that Bill Johnston, Mines Minister, has instructed his department to “do their job”. This comes after his office attempted to minimise rape allegations. Secret emails sent from Mr Johnston’s[…..]