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Workplace Relations Review

E-updates
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End of Year 2019 - Part Two

Sexual harassment and discrimination in the workplace, Consequences of recording keeping failures

Labour hire licensing and prosecutions

Labour Hire Licensing Update

The Labour Hire Licensing Act 2018 (Vic) has commenced in Victoria with the introduction of a Labour Hire Licensing Commissioner and the Labour Hire Authority.

The new legislation establishes a labour hire licensing scheme which requires:

  • labour hire providers to be licensed in order to operate in Victoria;
  • those who use labour hire providers to only engage licensed providers; and
  • labour hire providers to report annually on their labour hire activities.

All labour hire providers must now be licenced or have submitted an application and be awaiting an outcome in order to operate in Victoria.

Further information on the scheme can be found on the Labour Hire Authority’s website.

Meanwhile in Queensland, a number of successful prosecutions have taken place under the Labour Hire Licensing Act 2017 (Qld).

Labour Hire Licensing Queensland reported that, in October 2019, an unlicensed berry picking labour provider was convicted and fined $75,000 for operating without a labour hire licence. The company’s director was also convicted and fined $25,000 for “counselling, procuring or aiding” in the offence - the first successful prosecution of a director.

In addition to the successful prosecutions of the company and the director, a third-party company who entered into an agreement for the provision of workers was also convicted and fined $50,000 for its conduct in procuring labour from an unlicensed provider.

In November 2019, an unlicensed company that provided workers for grape picking was also convicted and fined $60,000 for operating without a licence. The provider had previously been warned by Labour Hire Licensing Queensland that it was not permitted to provide labour hire services without a licence.

These prosecutions are a strong reminder to labour hire providers and those who work with them that contraventions of the labour hire licensing legislation will not go unaddressed and can result in significant penalties.

Sexual harassment and discrimination in the workplace

“Tribunal finds that employee was sexually harassed and discriminated against by work health and safety poster"

Yelda v Sydney Water Corporation v Yelda v Vitality Works Australia Pty Limited [2019] NSWCATAD 203

Executive summary

A female employee has been found to have been sexually harassed and discriminated against by her employer and a contractor following the distribution of a work health and safety poster which featured a picture of that employee with the slogan “Feel great lubricate”.

Background

Sydney Water Corporation (Sydney Water) engaged Vitality Works Australia Pty Limited (Vitality Works) to implement a work health safety program, “SafeSpine”.

The employee was employed by Sydney Water as a customer liaison officer. In or about October 2015, the employee was called to repair a water main at a customer’s house. Whilst on site repairing the leak, Vitality Works asked the employee if she would like to volunteer to be part of the SafeSpine program and have her picture taken. The employee agreed and her picture was taken.

In April 2016, the employee saw a poster which had been placed outside the men’s toilet and lunchroom in a Sydney depot. The poster depicted her with her right arm outstretched above her head and, in large letters, the words “Feel great” and “lubricate!” The employee had not been shown and had not approved of the poster before it was placed in the workplace.

After seeing the poster, the employee claimed that she nearly collapsed and felt humiliated. She also subsequently received emails from co-workers about the poster.

The employee lodged an anti-discrimination claim, alleging that under the Anti-Discrimination Act 1977 (NSW) (AD Act):

  • Sydney Water and Vitality Works sexually harassed her; and
  • Sydney Water discriminated against her on the basis of sex.

In relation to the complaint of sexual harassment, the employee alleged that the poster and the slogan had a sexual meaning and it conveyed that she was a sex object within the workplace. She alleged that Vitality Works and Sydney Water were both liable because they designed, published, displayed and distributed the poster. The employee also claimed that Sydney Water was vicariously liable for the actions of its employees in approving the poster.

The employee claimed that the conduct was unwelcome as she did not agree to the poster or the slogan, she was offended and humiliated, and that a reasonable person would have anticipated that the poster would cause her to be offended, humiliated or intimidated.

The employee contended that the words “lubricate” in particular, had to be considered in the context of the poster, which included:

  • the text was bold and larger than the other text on the poster;
  • the workforce was predominantly male and blue-collar;
  • the poster was placed near the male toilet;
  • the employee was the only person featured in the poster; and
  • the words “feel great” added to the sexual nature of the slogan.

Sydney Water and Vitality Works submitted that the poster did not have a sexual meaning, and that the word “lubricate” was in reference to the lubrication of joints and the generation of joint fluid rather than any sexual act. They argued that the poster had been placed where other employment and safety messages were usually communicated, and that the poster’s other features confirmed that its message was about protecting the back and spine, safety at work and injury prevention, and that the employee was in a stretching pose rather than a sexual pose.

Sydney Water submitted that a reasonable person would not have anticipated that the poster would humiliate or offend as:

  • the poster was issued in relation to a safety campaign;
  • the content of the poster directly related to safety and training provided to staff;
  • the word “lubricate” had been used in training; and
  • there were no complaints about the use of the word during the training.

In relation to the allegation that Sydney Water discriminated against her, the employee alleged she was treated less favourably than a male colleague in circumstances that were not materially different. The employee submitted that Sydney Water chose to use her photo on the basis of her sex as she was the only female at the depot and it would attract attention, rather than using the photographs of a male employee which had been taken at the same time.

Sydney Water submitted that there were a number of male and female employees who were photographed by Vitality Works and that photos of both men and women were chosen to reflect diversity.

Decision

The Tribunal accepted the employee’s evidence that she was embarrassed and humiliated by the poster and was satisfied that the display of the poster was “unwelcome conduct” for the purposes of the AD Act.

The Tribunal was satisfied that displaying the poster in the workplace was conduct of a sexual nature in relation to the employee. It found that it was not immediately obvious that the poster was intended for a work health and safety message, it was unclear on its face how the employee’s pose related to spinal safety, and the words used did not immediately suggest the moving of joints to generate joint fluid. Rather, the Tribunal noted that “an immediate impression” conveyed by the poster was a sexual connotation involving the employee.

The Tribunal concluded that a reasonable person in the circumstances would have anticipated that the employee would at least be offended or humiliated by having her image used in that manner, after having regard to the following circumstances:

  • the poster was large in size and displayed in a prominent location where many employees did not attend the SafeSpine training program;
  • the workforce was mainly blue-collar; and
  • a reasonable person would have anticipated that the poster may have conveyed the sexual connotation.

In relation to the complaint of sexual harassment, the Tribunal found that the employee was treated less favourably than her male colleagues on the ground of her sex. It was noted that the poster was different to the posters containing images of her male colleagues - those posters showed the male employees in a classroom or standing outside performing neck stretches or shoulder rolls and the text used in the posters was less sexually suggestive.

Accordingly, the Tribunal found that Sydney Water and Vitality Works had sexually harassed the employee and Sydney Water had sexually discriminated the employee in breach of the AD Act.

What can your business learn from this decision?

Anti-discrimination legislation make it unlawful for employers to sexually harass or discriminate against employees on the basis of sex. Conduct of a sexual nature which is unwelcome could include physical contact, making comments or even displaying explicit material in the workplace. As noted in this decision, whether conduct is of a sexual nature is to be objectively assessed and the intention of the offender will not be a determinative factor.

Consequences of recording keeping failures

"Underpayment order doubled for employer who failed to keep adequate records."

Ghimire v Karriview Management Pty Ltd (No 2) [2019] FCA 1627

Executive summary

Two former employees of a former Lodge in Western Australia have successfully appealed a decision of the Western Australian Industrial Magistrates Court (Industrial Magistrates Court), with the Federal Court of Australia ordering that the original underpayment should be doubled to over $21,000 because the employer failed to maintain adequate records.

Background

A husband and wife were employed at the Lodge as a casual cook and guest services worker for a short period in December 2016 and January 2017, before their employment ended because the employer withdrew its application for approval to be a sponsor of their visa applications.

The couple then commenced small claims proceedings in the Industrial Magistrates Court alleging that the employer had failed to pay them in accordance with the applicable award.

The couple claimed that they had worked long hours (up to 18 hours per day) for that period. In its defence, the employer argued that the employees had agreed to work 18 hours and 15 hours per week respectively, and the employees could not have worked the hours claimed because, other than the Christmas and New Year period, there were very few guests and therefore less work to be done. The employer also admitted that it did not keep any records of the time worked or amounts paid and the director who gave evidence conceded that he was not at the Lodge for the majority of the relevant period.

The Industrial Magistrates Court accepted the employer’s evidence and ordered that the couple be back-paid a total of $10,165 based on the employer’s hours.

The couple then appealed the decision to the Federal Court of Australia, on the basis that the Industrial Magistrates Court had misapplied a provision of the Fair Work Act 2009 (Cth) (FW Act), which states that an employer bears the burden of disproving allegations if it fails to comply with its record-keeping obligations.

Decision

On appeal, the Federal Court was satisfied that the employer had not discharged the burden of disproving the allegations by the employees and the Industrial Magistrates Court had therefore erred in finding that the hours worked were less than what was claimed.

The Federal Court noted that the director could not recall what days he was present at the Lodge and gave evidence that was vague and evasive, indicating that he was not in a position to provide direct evidence about the hours worked by the employees.

The Federal Court also noted that the director could not point to any timesheets or records, and nothing in the director’s evidence could have formed a basis for finding that the employees did not work the hours claimed.

Accordingly, the employer was ordered to pay a total of $21,314 to the employees based on the hours claimed by the employees.

What can your business learn from this decision?

The obligations on employers to keep accurate records of hours worked and payments made to employees are a crucial element of the FW Act. Accurate records ensure that employees are advised of and understand their pay and reduce the risk of exploitation.

Accordingly, the consequences for failing to comply with these obligations can be serious. In claims for underpayment, an employer who fails to keep accurate records will be required to disprove those allegations which will obviously be quite difficult without contemporaneous records.

Athlete misbehaviour

"NBA stars get 2-game suspensions for on-court and online conduct"

Two professional basketball players in the United States of America were recently suspended for two games by the National Basketball Association (NBA) following an incident during an NBA game on 30 October 2019.

Joel Embiid of the Philadelphia 76ers and Karl Anthony-Towns of the Minnesota Timberwolves were involved in a physical altercation during the game which found both players attempting to throw punches at each other and wrestling on the floor. Both players were eventually ejected from the game.

However, the conflict did not end with the game, and both players took to social media to continue to berate the other the same evening. Each player shared a post on Instagram, directly referencing the on-court altercation and attempting to instigate further conflict.

Interestingly, in determining what sanction to impose on these players, the NBA took into account not only their on-court altercation but their “continued escalation following the incident”.

Of course, in workplace relations, there has been much debate in recent times about whether an employer is entitled to rely on an employee’s conduct on personal social media accounts when considering disciplinary action. However, in professional sports, this is not so controversial as those organisations, clubs and other stakeholders rely heavily on the reputation of those individual athletes to uphold and promote the integrity of the game – they are, or have the potential to be, faces of the game to the general public.

The NBA’s recent decision should at the very least remind professional athletes that their conduct on and off the field will be subject to close scrutiny by their employer and other stakeholders.

 

Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.

Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website.  Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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