Employment and Safety: one in three experienced sexual harassment at work in the last five years and other developments

The latest issues, decisions and proposed changes impacting business and workplace risk 15 min read

Update: one in three experienced sexual harassment at work in the last five years

By Brigid Nelmes, Tegan Ayling, Veronica Siow 

A 2022 national survey on sexual harassment in Australian workplaces identifies the ongoing prevalence of sexual harassment and highlights areas of improvement for employers¹.

Key takeaways for employers

For the first time, the survey looks at the views of workers on action taken by workplaces to prevent and respond to sexual harassment. In light of the new positive duty to eliminate sexual harassment (see our previous Insight), the results of the survey highlight the importance of:

• considering additional measures for higher risk members of the population;
• not only relying on formal complaints as an indicator of sexual harassment in the workplace, but considering additional information gathering measures such as anonymous surveys;
• improving training on sexual harassment and complaint processes; and
• evaluating measures to prevent repeated harassment after a complaint.

Key findings

The results of the survey suggest that one in three workers (33%) experienced sexual harassment in the workplace in the last five years, with the majority of those instances being perpetrated by men (77%). Only one in five who experienced sexual harassment in the last five years made a formal report or complaint. Following a report, the harassment only stopped in 28% of cases.

Increased rates of harassment were experienced by women (41%); people aged between 15-17 (47%) and 18-29 (46%); Aboriginal and Torres Strait Islander people (56%); people with a disability (48%); people who identified as LGBTQIA+ (46%); and people with an intersex variation (70%).

Certain industries have a higher incidence rate than the national average (33%), including Information, media and telecommunications (64%); arts and recreation services (44%); electricity, gas, water and waste services (40%) and retail trade (40%).

Information sharing and training is critical in preventing and responding to sexual harassment. However, only 50% of survey participants were provided with information on how to make a complaint and only 40% had received training. Those who experienced harassment reported, among other concerns, negative mental health impacts (67%); decreased job satisfaction (62%); negative impacts on self-esteem and confidence (57%) and decreased commitment to their organisation (53%).

Counselling and support is available for anyone impacted by the content in this article at 1800 RESPECT (1800 737 732).

Candidate chaos - employer fails to discharge the reverse onus 

By Veronica Siow, Andrew Wydmanski and Georgia Permezel 

A recent adverse action case highlights just how difficult the reverse onus of proof can be for employers to satisfy in general protections matters. 

Key takeaways 

• This case is a timely reminder of the challenges faced by employers in discharging the reverse onus of proof that applies in general protections claims.
• Employers must ensure they keep accurate and carefully documented records of employment decision-making, including in relation to restructuring and recruitment processes.
• Where a decision adversely affects an employee who has made a complaint, it is prudent (to the fullest extent operationally feasible) to have the decision made by someone other than those who were the subject of or implicated in the complaint.
• The number of decision-makers in employment decisions should be kept to a minimum, since evidence from all decision-makers may be necessary to discharge the reverse onus of proof in the event of a claim.

Decision 

An employee made three employment-related complaints, including a Fair Work Commission non-dismissal general protections application. The employee's workplace complaints were wide-ranging and complex, including grievances against his colleagues and that the organisation had a 'bias against men'. The employee alleged that the employer's decision to create a new role that it refused to offer him was motivated by his complaints and earlier general protections application, and was therefore adverse action against him. The employer subsequently created a new role, which the employee applied for and did not get. 

The two key issues in this case were whether the employer had taken adverse action by:

• creating the new role; and/or
• failing to appoint the employee to it.

In respect of the first issue, the court decided that the employer did not take adverse action by creating the new role because:

• the employee was employed on a fixed term contract;
• the employment arrangement ended due to the expiry of the applicable term; and
• the employee was not injured nor was his position altered to his prejudice as a result of the new role.

However, in failing to offer the employee the new role the employer failed to discharge the requisite reverse onus of proof (ie that the employer did not act for a prohibited reason when refusing to offer the new role to the employee). Several factors led the court to this conclusion, which included:

• inadequate records of the applicable interview and subsequent recruitment outcome (with ratings and criteria incomplete); and
• the employer's failure to call one of the four decision-makers as a witness.

Notably, whilst only one of the four decision-makers was ultimately responsible for making the decision to not appoint the employee to the new role, the court considered that the panel of three people who made the recommendation to that ultimate decision-maker were also decision-makers for the purposes of the general protections provisions, as the ultimate decision-maker relied on them when making her decision. Some of these decision makers had been the subjects of earlier complaints by the employee.

The matter is listed for oral submissions on the issues of penalties and relief on 17 May 2023.

Employer required to compensate worker for failing to appropriately respond to sexual harassment complaint 

By Rachel Skevington and Hannah Jorgensen 

A recent tribunal decision has highlighted the importance of employers complying with positive safety duties, including to provide a safe workplace, after an employer was ordered to pay over $50,000 in compensation to a worker for failing to appropriately respond to her complaint of sexual harassment in the workplace.

Key takeaways 

• Employers should have an in-depth understanding of their obligation to eliminate, or minimise to the greatest extent possible, the risk of sexual harassment in the workplace (see our earlier Insight for more information).
• In discharging their obligation, employers should provide training to workers regarding sexual harassment in the workplace (and other matters).
• The newly imposed positive duty to eliminate sexual harassment under Australian workplace health and safety laws is actively being considered and applied by courts and tribunals.
• Employers should ensure that they have appropriate procedures in place to respond to claims of sexual harassment in the workplace and to demonstrate that they have taken all reasonable steps to comply with positive safety obligations.

The decision

The Victorian Civil and Administrative Tribunal's decision concerned the assessment of damages in respect of earlier findings that an employee had been subjected to sexual harassment, racial discrimination, and victimisation in the workplace.

Relevantly, the tribunal had previously found that the impacted employee experienced sexual harassment when another employee looked at her breasts rather than her face when speaking to her and that her manager had treated her unfavourably due to her race when he stated 'you are Indian, I don't like Indians, they always cause problems' after she complained about the sexually harassing conduct. 

The Tribunal also found that the impacted employee was subsequently subjected to further unfavourable treatment when she was directed to take her annual leave and was transferred to a different workplace because she had made a complaint.

In respect of these findings, the impacted employee was awarded a total of $53,241 as compensation for the humiliation, distress, pain, suffering, and loss of wages and overtime she had suffered as a result of her employer's conduct. In reaching this decision, the tribunal member reiterated that 'employers have an obligation to provide a safe workplace to all their employees' and stated that 'freedom from sexual harassment, freedom from discrimination, and application of fair procedures for investigating workplace complaints, are all requirements for a safe workplace'. 

Aldi employees underpaid for pre-shift tasks 

By Veronica Siow, Lachlan Boucaut, Alana Perna and Will Tinney 

Aldi Foods Pty Ltd (Aldi) was found to have underpaid employees who were required to do a series of unpaid pre-commencement tasks 15 minutes before their paid shift began.

Key takeaways 

• If pre-work tasks are of no personal benefit to an employee and provide some advantage to an employer, they will likely be seen as 'work' by the court.
• Employers should consider whether it requires employees to arrive early before a shift in its operations and if so, whether its payroll practices are compliant.

Background

The Shop, Distributive and Allied Employees Association (the SDA) represented employees who worked at Aldi's Preston Distribution Centre (the PDC) in Sydney.

Between August 2018 and September 2022 (the Relevant Period), Aldi required the employees to perform a series of tasks in the 15 minutes after clocking on at work and before their actual rostered shift begun. The pre-commencement tasks included activities such as:

• checking and obtaining equipment which would be used during the shift and completing pre-start checklists; and
• undertaking a group physical warm up and toolbox talk.

As Aldi did not consider these tasks to be 'work' under the relevant enterprise agreement, it did not pay employees for this time.

The SDA said that these tasks were 'work', and that the employees were entitled payment.

In response, Aldi said that it was the custom and practice of PDC for these pre-commencement tasks to not form part of employees' paid contract hours. Employees were simply required to be 'ready to begin work' at the workplace at the commencement of their rostered shift, and that tasks completed outside their rostered shift were unpaid.

The decision

The court found that the employees were impliedly directed to attend the workplace 15 minutes before the start of their shifts. This was because employees could be disciplined if they were not ready to start work at the commencement of their shifts (and they could not start work until they had completed the pre-commencement tasks).

The court also found that the pre-commencement tasks were not private activities with any personal benefit to the employee, as would be the case if the employee was storing personal effects or donning their uniforms. The court found that the activities were completed so that the employees would be ready to work as soon as the shift started, which solely benefited Aldi. As such, the pre-commencement tasks were considered work and accordingly the employees were required to be compensated for additional time worked.

On 14 March 2023 Aldi was ordered to pay a penalty of $80,000 for contravening an enterprise agreement and the Fair Work Act 2009 (Cth) with the underpayments.

Contract is king in oral employment contracts too

By Tarsha Gavin, Emily Grutzner and Hilly Pammer-Green

A recent decision of the Federal Court is the latest in a series of cases applying the recent High Court authorities of Personnel Contracting and Jamsek (reported here) to determine whether an employment relationship exists, and has considered how these authorities apply to wholly oral employment contracts.

Key takeaways 

• When determining if a worker is an employee, the focus of the enquiry is on the legal rights and obligations as reflected in the terms of the contract that exists between the parties.
• This principle applies regardless of the nature of the contract – whether wholly written, wholly oral, or partly written-partly oral.

Background

The appellant, the Secretary of the Attorney-General's Department (the Secretary) rejected the respondent, Mr O'Dwyer's eligibility to recover certain employment entitlements under the Fair Entitlements Guarantee (FEG) Scheme following his family's business going into voluntary administration and being wound up. Relevant to his eligibility was the question of whether Mr O'Dwyer's brother (the worker), was a director and employee of the business, which if so, would have made Mr O'Dwyer an excluded person under the FEG scheme. Mr O'Dwyer filed an application with the Administrative Appeals Tribunal (AAT) for internal review of the Secretary's decision denying his claim. The AAT found that the worker was not an employee at the relevant time, which meant that Mr O' Dwyer was not an excluded person under the FEG scheme. The AAT's first instance decision that the worker was not an employee relied on evidence of the worker not wearing a uniform with company logo, the manner in which he was remunerated and the fact that he did not receive holiday pay or sick leave. The AAT adopted a 'multifactorial' approach to conclude that the 'visible outward signs of an employment relationship were absent' and that the worker was therefore not an employee. 

The Secretary appealed this decision to the Federal Court, contending that the AAT erred in law by relying on the multifactorial approach to determine whether the worker was an employee, instead of on the terms of the oral contract agreed by the worker and the company. The Secretary argued this case should be redetermined in light of the Personnel Contracting and Jamsek decisions, which were handed down after the AAT decision and overruled the multifactorial approach, finding that the rights and obligations reflected in the terms of the contract are given primacy in determining whether an employee relationship exists. The key question for the court in this case was whether the Personnel Contracting and Jamsek approach to determining employment status applies to oral contracts.

Decision

The court held that, consistently with the decisions in Personnel Contracting and Jamsek, even where the contract is wholly oral, the legal rights and obligations arising from it should be the focus when determining whether a worker is an employee. Factors previously considered under the multifactorial approach or the 'outward signs of an employment relationship' such as the history of the relationship between the parties and the manner of performing the contract will generally not be relevant. The court found the AAT had made an error of law by adopting the multifactorial approach instead of focusing on the rights and obligations created by the oral contract of employment. Therefore, the court allowed the Secretary's appeal and referred the matter back to the AAT for redetermination.

NTEU schools higher education sector on wage theft

By Tarsha Gavin, Alana Perna and Hannah Woodfield

The National Tertiary Education Union (NTEU) published in February 2023 its Wage Theft Report regarding the growing number of university underpayments that have come to light. The NTEU reported that a number of Australian universities and colleges have underpaid casual staff by a total of $83.4 million.

The NTEU alleges that the underpayments across the higher education sector have been caused by a number of factors including unpaid overtime, teaching misclassifications and high rates of insecure employment arrangements causing power inequities between education institutions and their workers. 

Key takeaways 

• The NTEU's recently released Wage Theft Report is continuing to focus attention on what the NTEU submits are systemic underpayment issues in Australia's higher education sector.
• In its report, the NTEU has called for further enforcement and penalty measures, which higher education institutions should be aware of.
• Higher education institutions should continue to scrutinise their payroll systems and employment practices and governance to ensure they are compliant with their obligations under modern awards, enterprise agreements and the Fair Work Act 2009 (Cth).

Calls by the NTEU 

The NTEU has called for the following steps to be taken to address underpayment issues in higher education:

Criminalisation of wage theft

The NTEU supports Prime Minister Albanese's election commitment to criminalise wage theft as a part of the Federal Government's Secure Australian Jobs Plan. The NTEU also asserts that strong criminal penalties for wage theft for individuals must be implemented to deter underpayments.

Implementation of the Senate Select Committee's recommendations on Job Security

The NTEU supports the implementation of recommendations in the ALP-led Senate Select Committee's interim report following its Job Security inquiry, specifically:

• ensuring casual conversion laws apply to workers in higher education;
• making public funding conditional on universities setting publicly available targets for increasing ongoing employment and reducing casualisation, and annually reporting their progress against these targets;
• requiring that universities provide more detailed employment data to the Federal Government; and
• increasing funding to universities under a reformed model.

Implementation of root and branch parliamentary inquiries into university governance

The NTEU has called for state and federal parliaments to hold inquiries to investigate the common factors in management and governance structures in the higher education sector (in particular, public universities), that has led to underpayments of this scale.