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A key figure in Australia’s industrial relations history and former Fair Work Commission deputy president says that the key to improving Australian workplaces isn’t more legislation.

Johnathan Hamberger, who was heavily involved with the Workplace Relations Act 1996, introduced by the Howard Government, told Workplace Express that he doesn’t think that “you’re going to fix problems by and large through legislation”.

Instead, he thinks management in Australia has to improve.

“Putting it crudely, management in Australia’s not very good. . . especially when it comes to dealing with people,” he said.

“I’m not saying that about all managers. There’s some organisations out there that are very well-run, but there’s an awful lot that aren’t.”

Earlier this year, Hamberger resigned as senior deputy president of the Fair Work Commission after 15 years at the organisation and its predecessors. Hamberger also completed a research these in workplace dispute resolution, which he completed in 2015.

“Having a good approach to dealing with workplace conflicts is pretty important to having a well-run organisation, both from the point of view of being productive and profitable and also from being a good place to work,” he said.

“But there’s not a lot of knowledge about how to do it. There’s a bit, but there’s not much written about it in Australia.”

In terms what he supports, Hamberger said that he is a fan of the FWC’s anti-bullying work and its New Approaches program, an initiative to help “parties find ways to build cooperative working relationships, [addressing] immediate issues and [establishing] processes that work long term.”

He would also like the FWC to take on an expanded role, adding management education as another feather to its hat of roles.

However, he also does concede there does have to be some legislative reform, especially in relation to the ‘complexity’ of enterprise bargaining agreement provisions established by the Fair Work Act.

“I really think it would be great to see some reform there, just to make the system more flexible and more sensible,” he said.


The Business Council of Australia has backed the Morrison Government’s plans to introduce so-called wage theft legislation, in a submission to the Government’s discussion paper on the protections for workers’ wages and entitlements.

However, the Council cautioned the Government to also introduce a ‘safe harbour’ caveat, that would allow companies to self-report accidental breaches and back-pay their workers without threat of sanction.

“There is a need to modernise the enforcement regime under the Fair Work Act 2009 so that sanctions for the most serious breaches of workplace laws are more closely aligned to those that apply under other laws regulating business conduct,” the submission says (via The Australian).

“The Business Council supports the introduction of criminal sanctions for such breaches.”

The clamour to introduce wage theft has raised recently due to a series of big companies and well-known brands being caught up in underpayment scandals.

Only last week did Woolworths reveal to the stock market that it may have underpaid thousands of staff a total of $300 million over the last nine years.

While Woolworths has issued a mea culpa, their chief executive Brad Banducci has also reiterated that the supermarket giant believed it had paid the correct wages, and that the ‘complexity’ of the General Retail Award played a part in the underpayment.

“This is a very complex issue which needs an industry-level dialogue,” Banducci said.

“At the right time, we’d like to come back and talk about the lack of flexibility in [awards] when interpreted literally.”

The Council’s submission supported such sentiment, suggesting that any new laws or policy tackle the ‘inflexible’ regulatory response to intentional breaches.

“In recent times [the Fair Work Ombudsman has] adopted an inflexible policy in dealing with non-intentional breaches,” the submission says.

“This has resulted in disproportionate remedies being applied to companies who identify their own breaches and self-report, as well as discouraging other companies from self-reporting when such breaches are discovered.

“The priority should be to encourage employers to pay employees correctly, to compensate employees where they may have been underpaid in error and to appropriately punish employers where breaches are intentional and employees have been knowingly underpaid.”

The Council also suggested how any change should be implemented.

“A balanced enforcement regime requires both carrots and sticks. At the one end of the spectrum, this should include criminal sanctions for the most serious wrongdoing,” it said.

“At the other end of the spectrum, it should include the ability for companies to self-report non-intentional breaches and access a ‘safe harbour’ regime in which they can rectify underpayments in a timely manner without the threat of sanction, subject to meeting appropriate criteria.”

The Fair Work Commission has found in favour of a son, who claimed his parents unfairly sacked him from his job.

The man was sacked after he was late to a family dinner. After a heated argument, the man was told to leave and never come back – either to his parents’ home or the family business.

The man had worked with his father at the family’s smash repair business and had helped manage it.

Fair Work Commissioner Sarah McKinnon ruled that the father pay the son over $10,000 for unfair dismissal.

“There is no evidence that the business or any of its officers held any relevant belief that the conduct of [the man] was so serious that immediate dismissal would be justified,” she said.

“If it was other than a summary dismissal, there is no evidence of any warnings being given to [the man] before he was dismissed. [The man]’s evidence is that there were none.”

Noting that the case obviously involved deep personal relationships, the Commissioner accepted that the son had a right to bring his claim to the FWC.

“I am left in the dark as to any additional contextual matters that should or could have been taken into account when considering if the dismissal was unfair,” Commissioner McKinnon said.

“It is, to my mind, extremely sad that what was once a loving family has allowed relationships to deteriorate to the extent that they have. However, Pasquale has the right to bring his claim and I must deal with it accordingly.

“But there is insufficient context before me to explain why arriving late for dinner would have been a valid reason for dismissal.

“I am not satisfied that it was.”

In delivering her findings, the Commissioner granted that reinstatement would not be appropriate given the “genuine loss of trust and confidence” between the two parties.

Based on the fact that the son could have found a new job quicker than he did, and that he would have reasonably worked for another six months, earning $31,200, the Commissioner ordered the father to pay his son $10,115

“I am not satisfied that Pasquale’s conduct in arriving late to dinner on 10 March 2019 can fairly be characterised as work-related conduct,” the Commissioner said.

“The compensation amount that I have determined is less than the compensation cap of 26 weeks’ pay. It is not an amount that is clearly excessive or clearly inadequate.”

Qantas staff are reluctant to report sexual harassment with only 3% being willing to file a report an incident, as they fear being called ‘troublemakers’ and being ‘put through the absolute wringer’.

That’s according to an independently-run survey (via the SMH) of around 2400 Qantas staff. 25% of those surveyed said they had told Qantas they’d been sexually harassed by a co-worker, and 15% of cabin crew had been harassed by a passenger.

Female pilots were 200% more likely to report bullying, with some female pilots adding that they felt they’d received backlash from campaigns to improve gender imbalance.

Qantas’ chief operating office Rachel Yangoyan said that while the findings on sexual harassment rates were similar to Australian national workplace averages – while admitting that the 3% rate willing to make a report was too low – “we want Qantas to be better than that”.

“To be clear, we have zero tolerance for any form of abuse or discrimination in any part of the Qantas Group,” Yangoyan said in an email.

Comments from the survey included the following:

  • “If I reported something, I would be put through the absolute wringer”.
  • “When I go to managers with a problem, I am seen as a troublemaker” and “We come from a culture of what happens on tour, stays on tour. We don’t dob.”
  • There is an “underlying current of homophobia”
  • “Some of the older crew can sexually harass … They feel safe to do so”.
  • Male staff were “always telling stories about female pilots”

Transport Workers Union national secretary Michael Kaine noted his alarm at the 3% of workers who would report an incident of sexual harassment.

“This is vastly lower than the national average of 17 per cent and well below the TWU survey of cabin crew across airlines showing 31 per cent reported sexual harassment,” he said.

“Despite this glaring problem, Qantas have not revealed any changes to their systems of reporting sexual harassment to encourage more people to come forward or changes to how complaints will be dealt with.”

The Australian Retailers Association has announced it will seek changes to the General Retail Award to make it less complex and more flexible, after Woolworths’ $300m underpayment was revealed last week.

Russell Zimmerman, head of the ARA which includes members such as Woolworths, Bunnings, Dymocks, Chemist Warehouse, JB Hi-Fi and the Good Guys, told the Australian Financial Review that they were seeking not to cut wage rates, but make the workplace relations system “less complex”.

“If the award system was less complex, a lot of these errors wouldn’t occur,” Zimmerman said.

“I mean if big retailers can’t get it right, how are small mum and dad retailers supposed to?”

The AFR reports that the Woolworths’ underpayment came due to an oversight in accounting for an employee’s individual hours. The company set salaries to account for ordinary hours and reasonable overtime, based on an average roster, but the underpayment came from not checking the wages paid against the actual hours worked.

As such, Woolworths’ CEO Brad Banducci would like to see a reduction of the award’s complexity.

“This is a very complex issue which needs an industry-level dialogue,” Banducci said.

“At the right time, we’d like to come back and talk about the lack of flexibility in [awards] when interpreted literally.”

In support of Banducci’s sentiment, NSW Business Chamber chief executive Stephen Cartwright said he “defied anyone to say they’re 100 per cent compliant”.

“The awards are so complex that I suspect if you went into just about any workplace in the country, and you’re an expert in workplace relations you could find a breach in some part of the business.”

Cartwright added that there should be a level of flexibility returned to awards, such as employers not having to worry about the award’s provisions if they paid a salary 25% higher than the highest in the award.

“If you go back to the clerks award in NSW … for decades it used to have [such a] clause,” Cartwright said.

“The industry was happy with that, the union was happy with that … but those sort of provisions went missing when we consolidated the awards to the modern awards at a national level and so you have these bizarre outcomes happening now.”

Unions have cast doubt on the motives behind calls for the change, with ACTU secretary Sally McManus bringing up Woolworths’ nationwide logistics chain as evidence that they deal with complex systems.

“It’s not a question of what businesses can do, but what they think they need to do, and what they think they can get away with,” McManus said.

Meanwhile, supermarket rival Aldi is reportedly confident it has no issues with compliance as it regularly checked salaried staff’s pay.

Female workers and young workers are particularly at risk of sexual harassment at work, according to a survey of employees in the retail and fast food industries.

Run by the Australian Human Rights Commission, in conjunction with the Shop, Distributive and Allied Employees’ Association union (SDA) and its members, the survey gathered feedback from 3,400 workers in early 2019.

Key findings of the survey include:

  • Female workers (46%) were more likely to have been sexually harassed in the workplace than males (29%).
  • 39% of all respondents reported being sexually harassed at work
  • Customers were responsible for perpetrating 36% of incidents of workplace sexual harassment (in the last five years)
  • 13% of workers had formally reported their most recent incident of workplace sexual harassment.

“It’s clear that sexual harassment in the industries our members are working in is at a critical level and has a negative impact on the health and wellbeing of our members,” SDA National Assistant Secretary Julia Fox said, when announcing the report.

“It’s appalling to find that young female workers, including minors, are more likely to experience sexual harassment in their workplaces than not,” Ms Fox said.

“The SDA will continue its campaign to engage employers to develop and implement effective strategies to eliminate sexual harassment at work.”

One worker Nyakim Nyuon, who has worked in the fast food industry for three years, told the Sydney Morning Herald that she once had to swap name tags with a co-worker.

“She ended up putting a fake name on her name tag,” Nyuon told the SMH. “I’ve had customers filming me without my consent and being flirtatious in a gross way.”

Another, anonymous, submission to the survey read:

“Wearing a badge with our name on it makes customers and sexual predators feel comfortable enough to harass us under the guise of friendliness. It also allows them to think that because they know your name they are entitled to other personal information about you and to touch you. Wearing a name badge also makes it incredibly easy for those same predators to go home and look us up online and then harass us from the comfort of their homes.”

In response the survey, Australian Retailers Association chief Russell Zimmerman said that businesses were concerned about the rising incidence of sexual harassment.

It’s just getting to a point where if we are not careful, staff will be saying I don’t want to work in the retail industry any more,” he said. “… we are a big employer and this becoming a big concern. We employ 1.2 million people, 10 per cent of the working population and we want workers to feel happy.”

The Woolworths executive team is expected to have their bonuses cut and potentially fall on their sword, as the scale of the Woolworths underpayment scandal unfolds further.

The Australian Financial Review today reports that Brad Banducci, the chief executive of the supermarket giant, “will pay the price” and resign due as they come to understand the scale of the unfolding underpayment scandal. Woolworths executives are also expected to not be paid their bonuses for the year.

“I fully expect to have a conversation with the board on the consequences of this,” Banducci said.

“It will impact bonuses for myself and maybe there will be other things that come out of it.

“But right now our focus is on addressing the issue and then we’ll work through what this means for the executive team later down on the track.”

Earlier this year, Peter Birtles, CEO of Super Retail Group, left his position after that company was found to have underpaid $43m to their workers.

Woolworths and Super Retail Group join a host of other big businesses, such as Bunnings, the Commonwealth Bank, the ABC, Sunglass Hut and Michael Hill Jewellers, to have revealed large scale underpayment issues.

However, as it stands, Woolworths’ underpayment of $300m is by far the biggest underpayment figure to date this year.

The AFR quotes an anonymous fund manager as saying that they expect senior Woolworths management to held accountable for the scandal and as such take a hit to their executive pay.

“It speaks to the complexity of the retail award but in an organisation this size with the resource they have it’s completely unacceptable,” the fund manager said.

“I believe the board needs to take accountability and forfeit director fees, at a minimum, or lose their seats, as this is a clear failure of governance and oversight.”

To make matters worse, the Fair Work Ombudsman Sandra Parker has revealed that the FWO will launch an investigation into Woolworths. Parker added was ‘shocked’ by the scale of Woolworths underpayment and ‘not satisfied’ with their apparent transparency.

“Lately, we are seeing a disturbing number of large corporates publicly admitting that they have underpaid their staff. Some of these matters go back many years and several comprise millions of dollars owed to workers. This is simply not good enough,” Parker said.

Woolworths is to be investigated by the Fair Work Ombudsman after it was revealed that it owes its staff up to $300m.

The supermarket giant told the stock exchange on Wednesday that it had found it may have underpaid 5,700 staff over a nine-year period.

These figures may increase as Woolworths also revealed it is currently conducting a extensive review of payment records.

In a press release, the Fair Work Ombudsman Sandra Parker was ‘frustrated’ at the amount of large businesses cropping up with admissions they’ve been paying their staff improperly.

“Lately, we are seeing a disturbing number of large corporates publicly admitting that they have underpaid their staff. Some of these matters go back many years and several comprise millions of dollars owed to workers. This is simply not good enough,” Parker said.

“It is particularly concerning that many of these corporates have enterprise agreements in place that they negotiated but then failed to properly uphold the minimum standards. These sorts of careless missteps by business can be costly, often running up into the millions of dollars across an entire workforce.”

If Woolworths’ calculations prove accurate, their $300m underpayment would be double the $150m 7-Eleven underpayment scandal and dwarf the much-publicised $7.8m George Calombaris’ MAdE Establishment failed to pay workers.

“We encourage corporates to cooperate with us to rectify breaches, but they must understand that admission is not absolution. Companies should expect that breaking workplace laws will end in a public court enforcement outcome,” Parker said.

“I intend to take this issue up with Boards around the country, because frankly that is the level within organisations that should be taking an active leadership role on this issue and seeking assurance about compliance from executive managers.”

Ed Mallett, Managing Director and Founder of Employsure, says that cases like Woolworths’ underline the difficulty in remaining compliant with such legal complexity.

“It would be wrong to assume that all of these businesses are rogue operators. Also caught up in these figures will be small business owners who are trying their best in a very difficult system,” Mallett said.

“Employsure Advisers take thousands of calls each year from small business owners needing help. Wage rates and entitlements are always high on the list of issues they’re struggling with.

“Of course we want a system that eradicates systemic workplace relations breaches. But we also need a system that adequately supports small business owners and limits unnecessary complexity.

“We hope that the Government’s Workplace Relations System Review will address some of the issues that are making it near-impossible for the small business community to successfully navigate Australia’s workplace relations system.

“In particular we’d like to see reforms that limit vexatious unfair dismissal claims, while reducing the amount of red tape that prohibits small business growth.”


The religious freedom bill is “flawed, bewildering and nonsensical” according to an opinion piece in the Australian.

“At its core it is flawed, a bewildering, nonsensical addition to our logically thought-out industrial relations framework,” writes columnist Katrina Grace Kelly.

“It will put larger employers in a no-win position, stuck between competing laws and at risk of fines.

“For large and small employers alike, it imposes the requirement to become experts in the doctrines of every single religion as well as the belief systems of atheists.”

The bill, which has been drafted and released to the public in that form, seeks to protect workers from being sacked due to expressing a religious belief.

The political will to introduce such laws was motivated by Rugby Australia’s dismissal of Israel Folau, after the rugby union footballer was dismissed for publishing an Instagram post that stated, amongst other things, that ‘hell awaits’ homosexuals if they do not ‘repent’.

Business and religious groups have already raised concerns with the draft bill, with the Anglican church calling the bill ‘flawed’ and with “very significant implications”.

Kelly also has concerns with it. By way of a scenario, she explains her issues with the bill.

‘For example, two employees of a business with a more than $50m turnover speak at a Christmas party. One keeps proselytising to the other and saying things like she is a sinner and going to hell because she is having sex out of marriage, and that using contraceptives is a sin,” Kelly writes.

“If ’the sinner’ complains to the employer that she felt uncomfortable, bullied and distressed, the employer is required…to address the issue.

“Legally, the employer is responsible, and the employer will be liable if the offended employee takes time off because she is upset and puts in a WorkCover claim.

“However, the employer will be unable to prevent the behaviour from recurring as long as the offending employee is merely making statements of her religious beliefs.

“The employer will be caught between two conflicting individuals. One has the legal right to a safe workplace, the other has the legal right to keep saying things that may be deemed to make the workplace unsafe.

“And among all this conflict and drama, the employer has to deal with the fallout and pay the WorkCover premiums.

“It is a no-win situation [for the employer], and it is staggering that a Coalition government would inflict this on the Australian workplace.”

Employsure’s Senior Employment Relations Adviser Michael Wilkinson raised different concerns about the bill in a media release, published in early October.

“In effect, the proposed laws are flawed and impractical. This is just another case of unnecessary red tape – various protections exist protect employees from discrimination in the workplace and outside the workplace,” Wilkinson said.

“Is another law really needed?”


An recycling business has been charged for industrial manslaughter by Queensland’s Work Health and Safety Prosecutor, in a historic first use of the state’s industrial manslaughter laws.

In May earlier this year a worker was killed after being hit by a reversing forklift at the business, located in the southern suburbs of Brisbane.

Following investigations by Queensland Police and Workplace Health and Safety Queensland, the case was passed on to the Queensland Office of the Work Health and Safety Prosecutor.

Two company directors have also been hit separately with charges of engaging in reckless conduct that resulted in the death of a worker.

The WHS Prosecutor,  Aaron Guilfoyle said that the recycling business and its directors had ‘failed’ to protect the safety of its workers.

“The charge of industrial manslaughter includes allegations that [the auto recycler] caused the death of their worker by failing to effectively separate pedestrians from mobile plant, and failed to effectively supervise workers, including the operators of mobile plant,”Guilfoyle said.

“The charges against [the directors] relate to their failure as directors to ensure that the business had those systems in place.”

Grace Grace, the Queensland Minister for Industrial Relations, said the new manslaughter laws would shake up bad attitudes towards workplace health and safety.

“Just over two years ago, the Palaszczuk Government introduced tough new laws aimed at protecting Queensland workers. They are the first of their kind to be introduced by a state jurisdiction and leave negligent employers culpable in workplace deaths with nowhere to hide,” Grace said.

“Individuals guilty of industrial manslaughter will face up to 20 years imprisonment, with corporate offenders liable for fines of up to $10 million.”

This case is likely to have significant reverberations around Australia, as the calls for industrial manslaughter laws become louder.

The Western Australian and Victorian state governments, as well as the Northern Territory, have publicly announced this year they’ll introduce industrial manslaughter laws, joining ACT and Queensland as jurisdictions with such laws.

South Australia, Tasmania, the Northern Territory and New South Wales currently do not have manslaughter laws nor plans to introduce them.

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