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Celebrating an Inclusive Workplace and Culture

March 4, 2022 | Author:

To celebrate Mardi Gras this week in Sydney, we talk to our own employees and ask them, what in...

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Inclusivity in the workplace is crucial to the success of your business. Our very own Talent Manager describes in...

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Happy Mardi Gras!

February 28, 2022 | Author:

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Gender Identity in the Workplace

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Australia was the pioneer country to introduce laws to protect non-binary persons from discrimination in 2013 when amendments were...

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December 14, 2021 | Author:

Claims of workplace sexual harassment are on the rise. It could be an indication that people are willing to...

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The pandemic has changed many aspects of our lives, from online grocery shopping to wearing masks in public spaces....

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A looming potential rise in workplace violence is not lost on business owners, as data from Employsure’s dedicated employer Advice Line...

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underpayment

Qantas may the next large brand to find itself subject to underpayment scrutiny, as the Australian Financial Review is reporting that the engineers’ union is taking the airline to court.

A statement of claim has been filed with the Federal Circuit Court, alleging that airline failed to progress 20 licenced aircraft maintenance engineers through the graded wage structure as outlined in their enterprise agreement.

The Australian Licensed Aircraft Engineers’ Association says that one engineer is owed more than $56,000 and that the final figure owed to workers may get into the millions.

“The total amount of wage underpayments may amount to over $10 million,” ALAEA federal secretary Steve Parvinas told the AFR.

Parvinas further added that there around a 1000 more ALAEA members who haven’t had their wages audited, and that figures cited in the filed claim don’t include unpaid shift or super payments.

Further, Parvinas also says he warned Qantas of potential underpayments, going back to 2013, in January last year.

“What kind of a society have we developed when a kid can get a criminal record for taking a candy bar from a store, while managers can knowingly keep millions in owed worker entitlements and walk free,” he said.

“The executives wouldn’t accept their wages late, yet these Qantas workers have to fight it out in a courtroom to get their owed entitlements.”

Qantas released a statement, saying that it is aware of potential errors in its HR system and that it has started addressing such errors.

“In this case, there is a complicated system that determines how our licensed engineers move between pay brackets. Errors in this system could result in a combination of under and overpayments to individuals,” Qantas said.

“In terms of the specific instances raised by the ALAEA in court documents, Qantas has already made adjustments to pay levels where required.

“What is at issue is the correct level of back pay, which Qantas has been working in good faith to determine but is now engaged in needless court proceedings over.”

Qantas names such as the Commonwealth Bank, Sunglass Hut, Bunnings, Wesfarmers’ Industrial Division, Super Retail Group (owner of Rebel Sport, BCF, Super Cheap Auto), Michael Hill Jewellers, and MJ Bale in coming under underpayment scrutiny this year.

The Senate is planning to stage a federal inquiry into wage theft, according to the Sydney Morning Herald.

The upper house voted on Wednesday this week to refer the ongoing ‘wage theft’ dispute to the ongoing Senate economics reference committee. That committee has three Labor and two Liberal members, with one other member coming from the Centre Alliance.

The inquiry will look at wage and superannuation underpayments and investigate the methods of recovering unpaid entitlements.

Labor senator Alex Gallacher, the chairman of the wage theft inquiry, says that the committee “won’t be shy” in demanding answers from business leaders.

“We will take the inquiry wherever it can go in the terms of reference,” Senator Gallacher told The Age and The Sydney Morning Herald.

“We won’t be shy about calling any and all chief executives if they’ve got a problem.

“We’ll shine a light wherever we can.”

The Morrison Government opposes the inquiry, with Liberal senator Jonathon Duniam saying that, although the government has “zero tolerance” to worker exploitation, it wasn’t necessary to “[have] yet another talkfest”.

“Action is what’s needed and action is precisely what’s happening,” Senator Duniam said, as he told the Senate the Government was increasing funding to and boosting the powers of the Fair Work Ombudsman.

The inquiry comes in the wake of Woolworths’ reported $300m underpayment to workers, as well as a host of well-known brands and businesses being under the underpayment lens.

Sunglass Hut, Bunnings, Wesfarmers’ Industrial Division, Super Retail Group (owner of Rebel Sport, BCF, Super Cheap Auto), Michael Hill Jewellers, and MJ Bale are just some of the names that have come under underpayment scrutiny so far this year.

Late last week, the Business Council of Australia announced its cautious support for criminal sanctions for deliberate wage theft, while also offering caution and calls for a ‘grace period’.

“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 Council said, in a submission to the Morrison Government’s public discussion paper on the matter.

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

The Fair Work Ombudsman carried out a surprise audit of 17 Top Juice stores yesterday, it has announced. The outlets were located in Victoria, New South Wales, Queensland and the ACT.

The FWO was responding to anonymous reports from Top Juice employees. Inspectors at the stores reviewed employment records and spoke to both staff and management about employment entitlements and record keeping requirements and processes.

According to the FWO, allegations made by employees includes “the underpayment of staff, failing to provide work breaks, not providing proper payslips or incorrect information detailed on the pay slips, and not paying termination entitlements.”

The audit of the Top Juice outlets follows on from many previous surprise audits of the fast food, restaurant and café industry, such as July’s audit of Brisbane’s trendy West End area, and an August audit of a group of bars in Melbourne.

In June, the FWO also announced that it would be targeting this sector in the 2019/20 financial year. Sandra Parker, the Fair Work Ombudsman, sounded out a warning to employers about the FWO’s objectives this financial year.

“Our intelligence indicates that high numbers of migrant workers, international students and young people are employed at Top Juice outlets, who may be unaware of their workplace rights or unable to speak up due to concerns about their visa status,” Parker said.

“Our inspectors are on the ground to gather further information about Top Juice’s operations and determine if there are any breaches of workplace laws. Our priority is to ensure that all staff are receiving the wages and entitlements they are provided under the law.

“All workers in Australia have the same rights at work and we encourage workers with concerns about their pay to get in touch with the Fair Work Ombudsman.”

According to the FWO, the hospitality industry accounts for 17% of all disputes “the FWO assisted with” and 36% of all anonymous reports, while only employing 7% of the workforce.

News of the FWO audit also comes during a financial year where celebrity chef George Calombaris’ MAdE Establishment made headlines across the country for underpaying their workers $7.8 million.

The NSW Government has released an educational guide for small businesses to help them prepare their business for disasters. The release of this guide comes as bushfires pose a ‘catastrophic fire danger’ threat to many parts of the state.

At the time of writing, many bushfires are burning all around NSW, from Albury on the Victorian border, to the Mt Warning region just south of Queensland border. A number of fires have been classified as ‘Out of control’ or come with an ‘Emergency Warning’ from the NSW Rural Fire Service.

According to the Secretary of the NSW Department of Education, over 575 schools and 20 TAFE campuses were closed today due to the threat posed by the bushfires.

Using the 2017 Lismore floods as a case study, the guide strongly suggests businesses should prepare for disaster as those that “were prepared in the face of the 2017 Lismore floods had significantly better business outcomes”.

The guide offers a five-step plan for disaster preparation. The plan is at follows:

  1. Know your risk
  2. Plan now for what you will do
  3. Get your business ready
  4. Be aware
  5. Look out for each other

The guide also suggests a few common-sense, actionable items from an employer perspective. These include inducting staff into your emergency action plan, developing a plan to keep them engaged in the case that business, severely damaged by a disaster, can not operate normally and therefore provide them with an income.

Yesterday Employsure also published a media release on employee entitlements during natural disasters, sharing advice for businesses caught in a disaster zone or affected by a disaster.

For example, Senior Employment Relations Adviser from Employsure, Michael Wilkinson, gave some advice around for employers in the case that employees cannot attend work due to a natural disaster or emergency.

“In some circumstances, an employee may have entitlements under their Award or Agreement that are relevant when an employee is unable to attend work due to an emergency or natural disaster. If no such entitlement exists, there are a range of options available to employers and employees depending on the circumstances.”

In the case that an employer has to temporarily shut down their business as a result of a natural disaster, Wilkinson says “It is important for employers to apply the correct employee entitlements during the closure.

“If the closure falls within the stand-down provisions, then the employer might not be required to pay the employee. If the business is closed and it otherwise could have operated, an employee could be entitled to payment.”

 

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.

Israel-Folau-Court-Case

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.”

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