It has been a year since the hashtag #metoo spread virally in October 2017, which has been used to bring attention to the widespread prevalence of sexual assault and harassment, especially in the workplace. However, as we approach the end of 2018, a great number of working women still sadly experience a range of discriminatory issues in the workplace that are not limited to sexual harassment. This article will explore new developments in the employment law arena that concern sexual harassment, family violence, and pregnancy discrimination, following the birth of the #metoo movement.
In February 2018, the University of Sydney released their ‘Women and the Future of Work’ report which included findings of the first ever survey of attitudes to work from Australian women aged 16 to 40. The findings showed that one in ten working women (10%) have experienced sexual harassment in the workplace.
The report also noted that it can be particularly difficult to make a complaint of sexual harassment in a male dominated workplace. Although the #metoo movement may empower employees to bring forth historic allegations of sexual harassment in the workplace, this may be restricted with the Turnbull government cutting the timeframe for lodging a workplace complaint with the Australian Human Rights Commission (AHRC) from 12 months to 6 months. Therefore, a sexual harassment complaint can be terminated by the AHRC if it is lodged more than 6 months after the alleged conduct. If this occurs, the complainant can pursue their claim in another legal avenue. However, where the AHRC complaint process is free, simple and flexible, an application to another legal avenue may attract additional costs for the complainant, including application fees and in legal representation.
Nevertheless, recent cases have demonstrated an increase in general damages being awarded in sexual harassment claims. In October 2018 the Victorian Civil and Administrative Tribunal (VCAT) ordered an employer to pay $10,000 in damages to a female employee for discouraging her to make a complaint about a male co-worker making sexually harassing comments. The case has reiterated a manager’s obligation to provide support, to effectively document the complaint and to treat such allegations seriously. In another recent case in the Fair Work Commission, Commissioner Harper-Greenwell stated that “benevolent sexism has no place in the workplace” and that the failure to object to the dismissal of the group leader who made inappropriate sexual comments “does not provide a justifiable excuse for [his] behaviour”. Although these cases assist in raising public awareness that sexual harassment in workplaces will not be tolerated, academics and practitioners are calling for updated federal sexual harassment laws that provide injunctive relief for sexual harassment before a formal court decision is made and for laws that hold employers and perpetrators accountable.
Although both men and women can be victims of family violence, statistics show that family violence is a gendered crime as Australian women are nearly three times more likely than men to experience violence from an intimate partner. Research shows that women with a history of family violence will often experience a more disrupted work pattern which can affect their personal income, with employees who experience family violence often experiencing difficulty in gaining and retaining paid employment and in disclosing family violence where it may impact on their employment.
From 1 August 2018, the Fair Work Commission introduced a new clause providing for family and domestic violence leave into all industry and occupation awards. This clause entitles all employees (including casual employees) to 5 days unpaid family and domestic violence leave. The 5 days of unpaid leave may be taken by an employee who is experiencing family and/or domestic violence and requires leave to deal with the impact of family and/or domestic violence. This can include the need to attend an urgent court hearing or to make arrangements for their safety or the safety of a family member.
The introduction of this clause marks a positive step towards recognising that family violence is a complex issue that does not simply affect a person’s private life but can also impact their broader public life including employment. Though in considering the practical reality of family violence, it is arguable that 5 days unpaid family violence leave is simply not enough. The family violence leave entitlement is only available to employees after completing 12 months of continuous service. Currently speaking, there is no requirement for enterprise agreements to contain a term providing for family and domestic violence leave, and there is no similar entitlement for award or agreement free employees. The Australian Council of Trade Unions (ACTU) submits that the entitlement to 5 days family and domestic violence leave should be paid, in considering the potential costs associated in leaving an abusive relationship including hiring a removalist, relocation costs, childcare, counselling, solicitor fees in court appearances, and amending utility and/or rent bills. Applying for an intervention order may also take several days, particularly if the matter is adjourned and/or further documentation is requested by the court.
NSW recently announced that it will introduce 10 days of paid domestic and family violence leave to its public sector employees, following the lead of other states including WA and SA, while Victorian public service employees have access to 20 days paid family violence leave. Although this is encouraging, the great majority of employees employed outside of the public sector may struggle to find time and financial independence to deal with the impacts of family and/or domestic violence with the current leave entitlement of 5 days unpaid family and domestic violence leave.
Under the Sex Discrimination Act 1984 and the Fair Work Act 2009, an employee cannot be treated unfairly due to pregnancy. In reality, many Australian working women are financially disadvantaged when taking parental leave. For example, Australian employees are currently not entitled to receive superannuation whilst taking paid or unpaid parental leave. The denial of superannuation under these circumstances further feeds into pre-existing gender pay gap and retirement gender gap, where women are financially disadvantaged in taking time out of the workforce for caring responsibilities and to raise children. In 2015-2016, the average Australian working woman retired with $36,000 while the average Australian working man retired with $110,000. If elected, the Labor Government has pledged a $400 million superannuation boost for employees to receive superannuation on parental, paternal and partner leave which may go towards closing the gender pay gap. In light of other positive developments, the Long Service Leave Act in Victoria was recently amended on 1 November 2018 to recognise periods of paid parental leave and up to 12 months of unpaid parental leave as counting as service. This means that taking parental leave during these timeframes will not break continuous service and will be counted in the long service leave calculation. As long service leave legislation differs between each Australian State, it will be interesting to see whether other Australian states will follow Victoria’s suit.
The issues raised in this article cannot be improved or changed overnight. These issues stem from a need for systematic cultural change across all workplaces. HR departments can play a key role in influencing workplace culture by implementing effective anti-discrimination and anti-harassment policies in the workplace. Employees may also have avenues to address unlawful discrimination, an unfair dismissal and/or general protections claim which our WAS team may be able to assist with. If you believe you are being discriminated in your workplace, please contact our WAS team for advice by email at email@example.com or telephone 1300 273 762 to speak to one of our Industrial/Legal team members.