What’s Been Happening in Australia in Relation to Sexual Harassment, Discrimination and Bullying from 08 April 2024 – 14 April 2024

First Successful Safework NSW Prosecution for Discriminatory Conduct Under The WHS Act

Employers will be familiar with Australia’s anti-discrimination laws. However, a lesser-known protection that often falls under the radar is in the anti-discrimination provisions of work health and safety legislation. In this case, SafeWork NSW succeeded in what appears to be the first prosecution for discriminatory conduct under the NSW safety laws.

The District Court of New South Wales accepted that an employee had been discriminated against under the Work Health and Safety Act 2011 (NSW) (WHS Act) when he was stood down after exercising his rights as a workplace health and safety representative. At the time, the employee, Mr Seremetidis (the Employee), was a high lift truck driver and an elected health and safety representative (HSR) working for Qantas Ground Services Pty Ltd (QGS) at Sydney International Terminal.

Section 85 of the WHS Act empowers a HSR to direct workers to cease work if the HSR has a reasonable concern that carrying out the work would mean exposure to serious health or safety risks.

In considering whether the Employee’s direction was validly given as a HSR under section 85 of the WHS Act, making it capable of forming the ‘prohibited reason’ under section 104, the Court held:

• the Employee held a ‘reasonable concern’ as to safety and that concern could not be seen as “fanciful, illogical or irrational” in the context of the Government restrictions imposed on 1 February 2020, which demonstrated the Federal Government’s view of the risk that COVID-19 posed to Australia
• there was a serious risk to worker health and safety because the workers were tasked with servicing aircraft arriving from a country that was at the epicentre of the Government’s restrictions
• the risk arose from an immediate or imminent exposure to a hazard because the cleaning crew would be exposed to the virus immediately upon boarding the aircraft.

While the Court considered that the Employee was under an obligation to first consult with QGS before giving the directions, the Court found that his failure did not invalidate the directions. This is particularly so because QGS had not raised concern about the lack of consultation at the time and QGS itself had also failed to fulfil its obligations under the WHS Act to consult about a health and safety matter. The Court accepted that QGS saw the Employee’s directions to cease work as a threat to the conduct of the business and as a result, stood him down from his employment, breaching section 104 of the WHS Act.

Worker Argues Employer ‘Retaliated’ After he Raised Concerns About Reduced Hours

A worker recently filed a claim before the Fair Work Commission (FWC), alleging that he was unfairly dismissed after he confronted his employer about his reduced hours. He said the latter fired him after his inquiry, which was done without warning. He alleged that his dismissal was a retaliatory action, constituting unlawful adverse action, after expressing dissatisfaction with the employer’s decision to “cut his hours” without any prior discussion on September 13, 2023. The worker stated that he was informed of his termination approximately 40 minutes after the confrontation. In response, the employer rejected the dismissal claim, asserting that the worker, classified as a part-time employee, only had “extra work hours” (beyond part-time hours) reduced.

“Considering the worker’s material and the email notification he received on September 13, 2023, [there is] no basis to question the clear and unambiguous communication of dismissal initiated by the employer,” it said.

The Commission then addressed the dispute through a conference. The FWC commended the parties as they were able to resolve their differences during the determinative conference. The parties consequently entered into a binding settlement agreement, which was formalized in a signed document.

Residential Care Provider Fined $300,000 in Relation to Risk of Workplace Sexual Violence

On 11 March 2024, the District Court of NSW convicted and fined a residential care provider (of young people) $300,000 for breaching its work, health and safety obligations as a result of exposing workers to a risk of violence, including inappropriate sexual behaviour, in the workplace. The case was brought by SafeWork NSW against Marist Youth Care Limited, for failing to address risks of inappropriate sexual and violent behaviour and a history of assault by clients, which resulted in a risk of serious illness or injury to workers.

Head of SafeWork NSW Trent Curtin said:

“This is a significant conviction brought by SafeWork NSW against Marist Youth Care for failing to prevent the risk of work-related violence and should be a warning to NSW employers that violence and sexual harassment in the workplace are never acceptable.

“Under NSW WHS laws, employers are required to address WHS risks and should take proactive, preventative action in their workplaces to ensure workers are protected from harm, including from violence and sexual harassment.

“To help ensure workers are protected from sexual harassment, SafeWork NSW has set up a dedicated Respect at Work Taskforce – the first Australian WHS regulator to do so – and will support NSW employers to take systemic action to address this pervasive harm.”

Workplace violence including sexual harassment is a WHS hazard which affects workers across all industries. To help prevent this WHS hazard, employers can:

• Consult with workers to develop policies and procedures to identify and prevent WHS risks and communicate them to workers, visitors and customers
• Regularly assess work design and environment risks that can contribute to workplace violence and sexual harassment such as working at night, alone, in remote or isolated settings and client or home visit related work
• Address barriers to reporting, provide timely and confidential (informal and formal) reporting options and offer support to anyone who makes a report.

The Federal Court Awards Increased Damages on Appeal for Employee Discriminated Against Due to His Age

Alex Gutierrez successfully brought proceedings against MUR Shipping (‘MUR’) for breaches of the Age Discrimination Act 2004 (Cth). On 4 May 2023, the Australian Federal Court allowed an appeal challenging the damages awarded to Mr Gutierrez by the Federal Circuit and Family Court. The Court found in favour of Mr Gutierrez, substantially increasing his general damages and awarding him damages for economic loss.

What happened was, in February 2018, MUR’s Managing Director, Brian Getty, told Mr Gutierrez, then 68, that MUR had a retirement age of 65 and asked him when he would retire. Mr Gutierrez replied that Australia does not have a mandatory retirement age, making him retire based on age was unlawful and that he would give three months’ notice of his retirement.

On 19 July 2018, Mr Smith informed Mr Gutierrez that his employment contract would end on 31 December 2018. From 1 January 2019, he would be on a new contract to train Ms Fernandes. Mr Gutierrez informed Mr Smith his actions were illegal and left the meeting in distress.

On 1 August 2018, Mr Gutierrez’s solicitors sent MRU a letter informing them they had repudiated Mr Gutierrez’s employment contract and on 1 November 2019, Mr Gutierrez commenced proceedings against MUR in the Federal Circuit and Family Court for breaches of the Age Discrimination Act 2004 (Cth) (‘AD Act’), namely, that he had been discriminated against on the basis of his age, had been constructively dismissed and had suffered a psychiatric injury on the basis of that discrimination.

The Federal Circuit and Family Court found that MUR unlawfully discriminated against Mr Gutierrez because of his age. Judge Driver found that Mr Gutierrez’s terms of employment were changed to his detriment, contravening s 18(2)(a) of the AD Act, with his employment contract being replaced by a fixed term contract.

Further, the Court found that Mr Gutierrez had been treated disrespectfully by MUR and the Court found that the primary judge (who awarded $20,000) should have considered that Mr Gutierrez was unable to work because of the age discrimination. Accordingly, the Court found that Mr Gutierrez was entitled to damages from economic loss flowing from the age discrimination. The Court also rejected MUR’s submission that Mr Gutierrez failed to mitigate his loss by not continuing work with MUR nor working with his daughter. Mr Gutierrez could do neither due to his condition.

The Court allowed the appeal and awarded $90,000 in general damages and took the initial view that Mr Gutierrez should be awarded $142,215.56 plus interest for economic loss.

Bully Bosses in Parliament Could Soon Face Fines and Suspensions

Federal MPs who breach workplace rules could soon face serious penalties, including a loss of pay and removal from parliamentary committees. Parliament will soon consider draft laws that give it power to act against bullying and harassing members of the House of Representatives and the Senate.

The new code of conduct adopted last year could be given teeth and used to act against serious offences parliamentarians commit against staff and colleagues. Sanctions being considered range from a reprimand to a fine of up to $10,000, which equates to about 5 per cent of a backbencher’s annual salary.

The Independent Parliamentary Standards Commission, which was established on recommendation from the Set the Standard report by former sex discrimination commissioner Kate Jenkins, could also recommend MPs be suspended from parliament or be relieved of their committee positions. The parliament would have to agree to take such action.

Australians Working Longer Hours for Less Pay – Report

Employees across Australia are working longer hours for less pay, according to a new report. Employment Hero’s latest SME Index investigated the data of over 1.5 million employees as well as 150,000 small and medium enterprises to discover a trend in February where wages dipped by -1.3%, despite a monthly (1%) and annual (2.3%) increase in median hours worked. The decline goes against the 7.5% annual wage growth, according to the report, indicating that median wages may be undergoing the early stages of market correction after a year of elevated operating costs that have strained businesses, particularly smaller ones.

According to the report, smaller businesses saw employee growth of 0.3% month-on-month and 5.6% annually. This is slower than the one per cent month-on-month growth for medium businesses, and 0.9% for large businesses. The Northern Territory saw the biggest monthly drop of -2.4%, while Western Australia fared best with -1%. Year-on-year, the Australian Capital Territory and Queensland marked the highest wage growth with 8.7%, while the Northern Territory logged the lowest growth at 4.5%.
Meanwhile, the report also discovered a generational gap when it comes to median hours worked.

Employees older than 65 years old saw 10.4% month-on-month increase in working hours, while other age groups saw a decrease in median hours worked. Annually, employees aged above 65 also saw a 2.9% increase in hours worked, while individuals between 25 and 64 years old only saw a 1.1% increase.

Report Fair Work Commission: Gender pay equity research Annual Wage Review 2023-24

The Stage 2 report examines the history of wage fixing and work value assessments in each of the 12 awards, helping to identify any indications of gender undervaluation. These indications include:

• a lack of a work value exercise undertaken by the Commission
• inadequate application of equal pay principles, and
• the making of consent awards and agreements.

Interested parties are invited to comment on the research in reply submissions to the Annual Wage Review 2023-24 by 5pm (AEST) on Monday 29 April 2024.
Read the:

President’s Statement: Gender pay equity research – Stage 2 report published (pdf)
Stage 2 report: Gender pay equity research (pdf)
Annual Wage Review 2023-24

Research Investigated How Employee Identities Can Influence Their Reactions to Witnessing Other Colleagues’ Mistreatment at Work

New research shows that a person’s identity (who we are) shapes their reactions to ambiguous situations in the workplace (how we see things) and can affect their perceptions of discrimination. Specifically, when a person highly identifies with their workplace—a sense of attachment that ordinarily offers benefits for employee motivation and engagement—it can also hinder their ability to recognize mistreatment when it occurs.

The research investigated how employee identities can influence their reactions to witnessing other colleagues’ mistreatment at work, including disrespect and incivility (aka “microaggressions”) targeting women. Specifically, it examined the impact of: (1) identifying as a woman, (2) identifying as a feminist, or (3) identifying as a member of the organization.

The research analyzed longitudinal field data over the span of a year, and supplemented these findings with experimental studies, together capturing the reactions of 1,250 employees from Switzerland and the United States. Analyses revealed that a strong sense of belonging within an organization can paradoxically lead to a lower likelihood of recognizing and addressing discrimination against female colleagues.

Fortunately, those same employees (men in particular) were also more likely to intervene once they recognized mistreatment. In other words, despite being generally blind to the bias, once highly identified male employees became aware of discrimination, they were more likely to censor it. However, highly identified female employees were no more likely to act once they saw discrimination (likely due to the social costs women face for complaining).

These findings underscore the need for leaders to foster employees’ identification with organizations, while simultaneously ensuring that intolerance of disrespect and discrimination are embedded as a core aspect of the organizational culture. By aligning anti-discriminatory values with ‘who we are’, organizational leaders can encourage highly identified employees to work against the bias rather than overlook it.

Have You Experienced Age Discrimination at Work?

Back in 1982, only 10 per cent of Australians aged between 60 and 64 were employed. But now, the majority of that demographic are still working, and face considerable discrimination in the workplace.
Ellen Fanning spoke with the new NSW Age Discrimination Commissioner, Robert Fitzgerald AM, about how that discrimination manifests and why Australia needs to enter into a “deep and meaningful conversation about how we value the contribution of older people”.

Skilled Migrants Experiencing Discrimination

Vishal Mittal saw a ‘promising future ahead’ in Australia after immigrating from India in 2022. He arrived in Canberra armed with a bachelor’s degree in computer science and seven years’ experience in the IT industry. But he said he found significant hurdles in the form of his temporary visa status, a shortage of jobs, and a ‘lack of local experience’. “After enrolling in a master’s program at the University of Canberra, I struggled to secure any sort of employment opportunity in the ICT sector,” Mittal said.

The study, encompassing nearly 2,000 individuals who migrated to Australia between 2017 and 2022, reveals that some ICT-skilled migrants report experiencing discrimination based on visa status, race or ethnicity. A considerable number also highlighted a ‘lack of local experience’ as a major barrier to job acquisition. Although 73 per cent of individuals would advocate for relocating to Australia, concerns arise regarding the intricate nature of the migration procedure.

The report found 55 per cent of respondents expressing difficulties in securing employment due to visa restrictions and a portion of migrants (28 per cent) reported experiencing discrimination based on their migrant status. It was also found that 46 per cent of ICT-skilled migrants secured their initial job within six months of completing an ACS skills assessment.

Furthermore, 85 per cent reported finding their first job within two years, with the remaining 15 percent stating that it took them longer than two years. The report further highlights that the majority of ICT-skilled migrants in Australia plan to stay in the country for the long term, with many aspiring to obtain permanent residency (PR) or citizenship.

Consequently, the suggested policy approach could involve streamlining the process for obtaining PR and citizenship to attract and retain global talent, the report suggested. Siobhan O’Sullivan, ACS Chief Growth Officer, said employers were missing out on a great resource by overlooking recent migrants.

Katie Kiss Commences as Aboriginal and Torres Strait Islander Social Justice Commissioner

Australia’s new Aboriginal and Torres Strait Islander Social Justice Commissioner, Katie Kiss, said in the wake of the devastating outcome of last year’s Voice referendum, Australia must consider the next steps, and prioritise finding ways to heal and soothe divisions. This includes making meaningful progress in addressing the systemic and structural discrimination experienced by First Nations communities.

Commissioner Kiss, who commenced in the role on Wednesday 3 April, said her immediate focus will be to meet with First Nations communities around the country, hearing their perspectives on the most pressing matters facing their people.

The Aboriginal and Torres Strait Islander Social Justice Commissioner is a statutory position relating to the human rights of Aboriginal and Torres Strait Islander people. This includes undertaking research and education projects to promote respect for, and the enjoyment and exercise of human rights by, Aboriginal and Torres Strait Islander people.

Commissioner Takes up the Fight to Break Down Underlying Causes of Ableism

Australia’s new Disability Discrimination Commissioner, Rosemary Kayess, says Australians need to reframe how they think about disability and address social structures that prevent people with disability from participating equally in society.

Commissioner Kayess, who began in the role on January 29 this year, said people with disability are too often viewed through the lens of care, treatment, protection, and service provision. She believes there is a unique opportunity to transform the lives of people with disability following the Disability Royal Commission and the Independent Review into the NDIS.

Commissioner Kayess aims to work with government, stakeholders and the disability community to address ableism and ensure the rights of people with disability in all areas of life. Commissioner Kayess is a woman with disability who sustained a spinal cord injury in a car accident and uses a wheelchair.

Commissioner Kayess said there is a unique opportunity to improve the lives of people with disability following the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability and the Independent Review into the NDIS.