The Fair Work Act 2009 (Cth) (“Act”) plays a critical role in ensuring that Australian employees are protected from unfair treatment in the workplace. Among the key features of the Act are the general protections provisions, which prevent employers from taking adverse actions against individuals for prohibited reasons, such as exercising their workplace rights, engaging in industrial activities, or being discriminated against based on specific attributes.
The labor government made a number of election promises in the last federal election, one of which was to ensure workplace equality for men and women with respect to pay. The government committed to close the gender pay gap and improve workplace participation by women.
The industrial landscape of Australia has changed rapidly in recent years, with the evolution of the gig-economy and business’ over-reliance on labour hire arrangements and the increasing casualisation of the workforce. This shift has exacerbated insidious consequences such as prolific wage theft, gender inequality, and job insecurity. The new Labour Government headed by Anthony Albanese (“Labour”) is taking direct aim at some of these issues, with a series of vision statements and plans that espouse commitment to stamping out sexual harassment at work, improving job security, facilitating pathways to permanent work, and securing equal pay.
In 2018, sexual harassment was at the forefront of the public psyche. In response to an industrial landscape rife with sexual harassment, the Respect@Work campaign was launched. After two years of research, in March 2020, the Australian Human Rights Commission (“AHRC”) released the Respect@Work: Sexual Harassment National Inquiry Report (“the Report”) which made 55 recommendations to prevent sexual harassment and to improve responses to complaints. Among these recommendations was the concept of imposing a ‘positive’ duty on employers to prevent sexual harassment in the workplace. The rationale was that this approach will lighten the burden on victims and attempt to overcome circumstances where employees feel they are unable to make complaints or adequately resolve issues, due to fears around job security or being treated differently.
It is now 12 months since the insidious discriminatory and sexually predatory behavior of powerful Hollywood moguls was exposed by a few very brave women. It is also 12 months since the phenomena of the #metoo movement. The fallout from all this publicity is certainly a heightened awareness of the unacceptable behaviours that occur at work, mostly against women. Now with the Christmas and New Year period upon us, many employers will be celebrating the end of 2018 with their employees. This is a fertile breeding ground for employees to “forget” they are required to adhere to a certain standard of behavior. However, with all employees more emboldened by the current climate, unacceptable behavior is far less likely to be tolerated and certainly much more likely to be reported.
The #MeToo movement has continued to expose the frequency of sexual harassment that occurs and continues to occur against women on a global level. Sexual harassment continues to be front and centre as a growing number of victims have come forward with their own #MeToo experiences.
In this week’s article we consider the continued effect of the #MeToo movement on Australian workplaces, the legal definition of sexual harassment and an employer’s responsibilities in relation to sexual harassment in the workplace. Most importantly, we consider what steps employers should be taking within their business to reduce the risks in this area. We also examine a recent decision which demonstrate the changing attitude of the Fair Work Commission towards sexual harassment in the workplace.
Flexible working arrangements have become more and more popular over the years. Traditionally, this was something used by working mothers and carers, but as social norms have evolved, it has become very common for all types of workers to want to adopt flexible working arrangements. For example, flexible working arrangements allow employees to balance family, carer and other responsibilities and interests alongside their work commitments and career goals.
The incidence of domestic violence appears to be on the increase and it is now a much discussed social issue in Australia. The statistics regarding domestic violence in Australia are horrifying – one in six women, and one in 20 men, have experienced violence from a current or former partner since the age of 15. Just in the last week there were two instances of serious injury from domestic violence reported by mainstream media.
Happy 2017! The start of a new year is usually a time many of us reflect on what we would like to achieve in our personal lives in the year to come. However, many of us don’t take the time to reflect on our work or professional lives in the same way. With the new year in full swing, we thought now was a perfect opportunity to consider some of the leading themes emerging in the employment law arena already this year, with a view to discussing some of the steps you can take to ensure your business stays on the right track.
According to a report released by the Senate Education and Employment References Committee entitled “A National Disgrace: The Exploitation of Temporary Work Visa Holders” dated 17 March 2016 there are approximately 1.4 million temporary visa holders working in Australia who are covered by the national Fair Work system. Startlingly, many visa holders experience a significant amount of employment mistreatment. The Fair Work Ombudsman, Natalie James, recently observed that migrant worker complaints of mistreatment have soared in recent years, and sponsorship breaches were often deliberate acts of exploitation by unscrupulous employers. Similarly, Professor Allan Fels of the newly appointed Federal Government Ministerial Taskforce (“the Taskforce”) established to protect migrant workers commented that the exploitation of migrant workers in Australia was “systemic” and “deeply embedded in the practices of some businesses”.
It is no secret that the composition of Australia’s population is much older today than it has been in the past, and both the number and proportion of older people is growing steadily. In 2014, the number of people aged 65 and over was 3.4 million, a three-folder increase on the decade prior. This trend is expected to continue, particularly as the “baby boomer generation” ages. Based on population projections by the Australian Bureau of Statistics, by 2064 there will be 9.6 million aged 65 and over, and 1.9 million aged 85 and over. Against this demographic background and the increase in sophisticated technologies, the government has made it a financial imperative to lift employment participation rates and boost productivity including by offering incentives to employers who employ older people. The only problem is that the definition of an older worker seems to be getting younger, as employers tend to implement cost cutting measures by shedding older workers through redundancy and other change management programs.
Requests by employees for flexible working arrangements have become more and more popular since the introduction of this right as part of the National Employment Standards. Traditionally, such requests were most common amongst working mothers and employees with carer responsibilities. Nowadays it is common for all types of employees to utilise flexible working arrangements for a variety of different reasons. In our experience, many employers are more than willing to consider and, where they are able to do so, accommodate requests for flexible working arrangements. In some cases, however, the operational demands of the business simply do not permit an employer to agree to such requests.