Employee Rights

Employee Rights

Be sacked forces migrant to work unreasonable hours

Be-sacked-forces-migrant-to-work- unreasonable-hours
Nobody should be taken advantage of. We are all Australians, we are in this land together

Be sacked forces migrant to work unreasonable hours

Working reasonable hours is a right that most Australians know is protected by our employment laws. But if you’re a recent migrant to this country, you may not know what kinds of hours are reasonable, and some unscrupulous employers may take advantage. Being threatened with dismissal if you don’t work the bigger hours we get these calls daily. Be sacked forces migrant to work unreasonable hours is more relevant than ever before.

At A Whole New Approach, we see this all the time. There ever there are marginalized groups, there are employers that (thankfully a minority) that take advantage of employees. Migrants, people with mental illness or disabilities, low IQ, people out of prisons, young people, women trying to return to work after a long period away. Why do employers do this? Its called profit. This culture contributes to increasingly toxic workplaces, increased work cover claims, violence in the workplace and theft. In the longer term it benefits neither the employer or the employee

Leading wholesaler exploits African migrant in reasonable hours case

That’s what happened in a reasonable hours case heard by the Federal Court in May. The case concerned Sydney’s largest meat wholesaler, which forced a recent migrant to work a 50-hour week with 4am starts. In this article, we’ll look at the details of the case and how the Court came to a ruling. But to understand this case, we must first look at what actually constitutes reasonable hours as defined by Fair Work.

What are the maximum weekly hours of work?

The National Employment Standards (NES) outlined within the Fair Work Act 2009 are 11 minimum employment entitlements that must be provided to all employees. One of these entitlements outlines the maximum reasonable hours an employee can work.

The entitlement states that an employer can’t request or require a full-time employee to work more than 38 hours per week. For those employee’s who aren’t full-time, they must only work 38 hours per week or their ordinary hours of work in a week. Whichever is lesser. The weekly hours an employee works must be taken to include any hours of leave or absence (paid or unpaid) authorized by their employer, a term of their employment or by law.

If an employee is asked to work additional hours, they have the right to refuse if it’s considered unreasonable. Fair Work considers a number of factors to determine whether additional hours are reasonable hours or not. This includes whether it poses a risk to the employee’s health and safety. And the employee’s personal circumstances, to name just two. You can view the full list of factors on the Fair Work site.

Now, with this in mind, let’s look at the reasonable hours case of the meat worker.

Be-sacked-forces-migrant-to-work-unreasonable-hours
Migrants should be welcomed, not be threatened with dismissal or be sacked

“The job starts at 2am:” Ghanian migrant commences work at meat wholesaler

In March 2016, 24-year-old Ghanian Samuel Boateng migrated to Sydney with his mother and three siblings. Eager to find employment, the marketing science graduate sought advice from a member of the Ghanian community. This man, Nana Yaw, told Mr Boateng that there were jobs available at  Dick Stone PTY LTD, where he was employed. A week later, Mr Yaw informed Mr Boateng that he could commence employment at Dick Stone the following Monday, saying that the “[t]he job starts at 2.00 am.”

On 21 March 2016, Mr Boateng turned up for his first day of work at Dick Stone in the Western Sydney suburb of Regents Park. Arriving at 1:45am with Mr Yaw, Mr Boateng was introduced to Peter Bertram, Mr Yaw’s supervisor. Critical to this reasonable hours case was that during this meeting, Mr Bertram didn’t mention any details about Mr Boateng’s employment. He failed to discuss terms, conditions, his expected hours nor pay. Mr Boateng was subsequently put to work that morning.

The employee is given a very suspect offer of employment

Returning to work the next day, Mr Boateng was handed an “employment form”. Which was an employment application for the position of “knife hand/laborer.” He was also given an “Employment Commencement Pack,” which included a letter of offer for the aforementioned position. Both these documents were dated 22 March 2016.

The letter of offer stated that Mr Boateng had commenced work the previous day. It also outlined the following “general conditions” regarding his hours of work:

  • Hours: The ordinary work hours for a full-time week are 50 hours per week. Your ordinary work hours will initially be within the range 2 am to 11:30 am Monday to Friday, 2 am to 7 am Saturday. This may at some stage in the future need to be varied from this range due to business requirements.
  • Additional Hours: There is the expectation that when requested by the Company employees shall work a reasonable amount of additional hours.

The letter of offer was, however, lacking several notable details that were key to this reasonable hours case. It didn’t outline how much Mr Boateng would be paid. It also didn’t outline any overtime entitlements, nor refer to the relevant Meat Industry Award 2010. Mr Boateng had at this stage only been in Australia for three weeks. He was therefore unaware of the obligations of employers and signed the offer of employment that night.

The long, unreasonable hours take a “damaging” toll on the employee

It wasn’t until Mr Boateng received his first pay slip that he found out how much he was being paid $20.70 per hour. He wasn’t given the opportunity to agree to this rate. Nor did he know if it included other entitlements or loading.

Mr Boateng would later testify to the Federal Court that he was never given a choice but to work 50 hours a week. He said that if he was given the opportunity to work 38 hours instead, he would have taken it. The long, unreasonable hours and egregiously early start time eventually took a toll on Mr Boateng. This was especially when his wife gave birth to their first child.

“I found 50 hours per week to be very difficult, particularly as I needed to get up at about midnight every day”. Stated Mr Boateng. “I found the long hours damaging on my relationship with my family and my wife.” “The long work hours, particularly only having one day a week off from work, was very difficult at the time I was married and with a newborn child.”

Shouldn't-have-to-think-about- potential-mistreatment-when-applying- or-looking-for-a-job
Shouldn’t have to think about potential mistreatment when applying or looking for a job

The Australasian Meat Industry Employees Union intervenes

In November 2017, the Australasian Meat Industry Employees Union contacted Dick Stone about a number of employee concerns. This included the underpayment of several Award entitlements, as well as unreasonable working hours and overtime performed. A back and forth of correspondence ensued between the two parties, before things went quiet.

In November 2018, the Union once again raised the issues with Dick Stone, proposing that they be resolved through the dispute resolution process outlined in the Award. Then in December, the Union informed Dick Stone that it would represent Mr Boateng in this process, at his request. In February 2019, the Union filed an application with the Fair Work Commission to deal with the dispute. However, because Dick Stone refused to agree to arbitration, this proceeding came to an end.

Mr Boateng was subsequently made redundant with three other employees in September 2019.

The employee’s unreasonable hours claim is considered by the Federal Court

It wasn’t until May 2022 that Mr Boateng’s case reconvened in the Federal Court. The key issue that it had to decide on was whether it was reasonable for Dick Stone to require or request Mr Boateng to work beyond the maximum 38 hours per week stipulated in the NES. 

The Union submitted to the Court that Dick Stone’s requirement for Mr Boateng to work 50 hours per week wasn’t reasonable. Also, that he wasn’t paid his correct overtime or penalty entitlements. Dick Stone, meanwhile, argued that the 50 hours per week that Mr Boateng worked was in fact a term in his employment contract. It said that Mr Boateng had entered the contract on his own free will. The company also stated that Mr Boateng was paid a “blended rate” that included overtime. Hence he didn’t receive separate pay for the extra 12 hours per week.

Was the employee forced to work unreasonable hours? The Federal Court makes its decision.

Considering the evidence, Justice Anna Katzmann found that Mr Boateng’s employment contract was wanting in several regards. She found that it didn’t outline what Mr Boateng would be paid. Also, that it didn’t mention any entitlement to overtime or refer to the Award.

When it came to whether it was reasonable to require Mr Boateng to work extra hours, Justice Katzmann considered the reason provided by Dick Stone. The company argued that it had required extra hours in line with one of the reasons stated in the NES. Namely, “the needs of the workplace or enterprise”. Justice Katzmann found that while the 50-hour work week aligned with this reason, it didn’t necessarily mean the additional hours were reasonable for Mr Boateng.

Justice Katzmann found that:

  • Mr Boateng was exposed to “obvious risks” associated with lengthy shifts in a job “requiring the use of knives and the lifting of heavy weights.”
  • It was “unsurprising” that Mr Boateng didn’t attempt to negotiate his employment terms. As he had “recently arrived in Australia from a third-world country, needed employment, and was likely to be unfamiliar with Australian law.”
  • According to the industry Award, the usual pattern of work in the meat industry “is to work from 4 am, not 2 am.”

Considering all these factors, Justice Katzmann ruled that Mr Boateng had indeed worked unreasonable hours. “On balance, . . . I am persuaded that it was unreasonable of Dick Stone to require or request [the worker] to work 12 hours a week every week over and above the 38 stipulated by the award and the Act,” Justice Katzmann concluded.

Everybody-should-be- comfortable-and- happy-where-they-work,-not- threatened-with-being-sacked
Colleagues and coworkers taking photo together after the office party before the summer holidays. Multi ethnic group of diverse people, from young adults to mature people, smiling and expressing positive emotion.

Conclusion to Be sacked forces migrant to work unreasonable hours

Have you been forced to work unreasonable hours?

Employment rights, Casual employee rights, workers rights are important, this is not a political statement, its how we all want to be treated. Employees are often expected to work overtime, and sometimes without being compensated for it. Or pressured to work extraordinary long shifts or continuous days. If that sounds like your situation, A Whole New Approach can help you take action against your employer. All adverse action claims, underpayments, been sacked, forced to resign over conditions or toxic workplace

Call us on 1800 333 666 for a free, confidential discussion.

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A Short History of Australian Employment Law

A-short-History-of-Australian-Employment-Law.-Justice-at-the-Fair-work-applies-equally- to-all
Justice at the Fair work applies equally to all. Everybody is entitled to a fair go underpins workplace laws in Australia

A Short History of Australian Employment Law

Australia’s landscape of employment law has made, since the Great Strikes of the 1890s, great strides toward equilibrium in the workplace. A full embrace of the rights of employees in pastoral, industrial, and office workplaces has been a work in progress. This was throughout the 20th and 21st Centuries, to say the least. However, it is safe to say that, now, in the year 2022, Australian employees and workers have a variety of legal rights and options at their fingertips when seeking relief for workplace wrongdoing. A Short History of Australian Employment Law is well worth a read to understand where and how got to today.

This purpose of this Article is to demonstrate the evolution of Australian employment law. Then, to provide a summary of the state of Australia’s employment and workplace-related legal landscape as it stands now.

A Chronology of Australian Employment Law: Then To Now

The history of Australian employment law truly began in 1904 with the passage of the Conciliation and Arbitration Act 1904. Passed in the wake of the Great Strikes of the 1890s and the commencement of Australia’s nationhood in 1901, the Conciliation and Arbitration Act 1904 was the first legal mechanism instituted in the country to govern the resolution of disputes between workers, unions, and employers.

This statute created the Commonwealth Court of Conciliation and Arbitration in order to settle workplace disputes. The Court was empowered to resolve disputes and to issue decisions, or “Awards.” An “Award” is, in Australia’s employment law system, an instrument that sets and regulates aspects of the employer-employment legal relationship.

This Court issued, in subsequent years, a number of notable Awards that greatly influenced the evolution of Australian employment law. In 1906, for example, an Award regarding Federal maritime benefits introduced the concept of 10 days of annual leave into the Australian legal landscape.

In 1907, the Shearers’ Award (decision of the Commonwealth Court of Conciliation and Arbitration) held that a worker could only be absent from work if he was sick or unwell. (This may seem to be very limiting, but the allowance for sick leave at all was a significant development in Australian employment law.)

Minimum wage was introduced

Again, in 1908, the Commonwealth Court allowed set a basic minimum wage for the first time, holding that it should be sufficient to support a 5-member family. Legislation continued to follow the precedent of the Commonwealth Court to improve the legal landscape for workers in Australia.

In 1927, Australia reduced the standard work week to 40 hours from the prior 44-hour standard work week. Then, in 1935, the concept of paid sick leave and annual leave began to be slowly incorporated into the standard mode of Australian employment terms and conditions.

World War II introduced further advances to Australian employment law.

Governmental regulations established as a huge portion of the male workforce donned helmets and uniforms and departed their workplaces for service overseas required that the minimum wage for female works increase to at least 75% of men’s basic wage.

This new standard was adopted by the Commonwealth Court in 1949 and would remain the governing rule regarding women’s wages for 3 decades.

In 1956, the old Commonwealth Court was ruled unconstitutional by Australia’s High Court. In its place, a new Industrial Relations Court was established. The old Commonwealth Court then evolved into the Conciliation and Arbitration Commission. Its responsibility was confined to making or changing Awards.

Equal pay for equal work

From 1966 to 1968, the Commission ruled that Aboriginal pastoral workers were to be paid the same as white pastoral workers and, in 1972, that all workers were to receive equal pay for work of equal value.

Women’s separated minimum wage was excised from Australian employment law, establishing wage parity for the first time.

In 1979, the right to 12 months of unpaid maternity leave was introduced.

A-Short-History-of-Australian- Employment-Law
Our wages and conditions must be reflected equally for a modern society. We don’t to go backwards

In 1993, the Industrial Relations Reform Act 1993 was enacted.

This important statute allowed employment disputes to be settled through Enterprise, or collective, bargaining between employers and workplace unions, with the now-renamed Australian Industrial Relations Commission in place to settle disputes when bargaining parties fail to do so.

In 1996, the Workplace Relations Act 1996 was also enacted, and the state of Victoria moved into the national workplace relations system.

Through the 1990s and into the mid-2000s, Australia’s Federal industrial relations system grew to encompass a large number of employers and employees covered previously only by state industrial relations systems. In 2008, the Commission began a process of updating and modernizing Awards, replacing over 1,000 state and Federal awards with 122 so-called “Modern” Awards. This process was completed in 2009.

Modern Awards

The Modern Awards generally occupy two categories: (1) industry awards; and (2) occupational awards. Some Awards occupy both categories. Industry Awards cover employers operating in specific industries, as well as the employees who work within those industries. Occupational Awards are those covering employees working in certain occupations, regardless of whether their employers fall within that spectrum of Award coverage.

Whether or not an employer falls into a particular industry has been examined by Courts resolving disputes as a factual question, controlled by the “substantial character” of the enterprise at hand. This involves a macro-review of the employer’s business to determine what the “substantial” strand of the enterprise’s business actually is. More than 1 Modern Award may cover a single employer’s operation, however.

The breach of an Award’s terms by an employer can result in significant monetary penalties, assessed on a per-breach basis, compounded, potentially, by the number of individuals involved in the breach. Thus, throughout the 2000s, the Commission continued this transition and, ultimately, covered most workplaces throughout Australia with this new Modern Award regime.

Fair work Australia

In 2009, Fair Work Australia was founded to replace the many-times re-named Australian Industrial Relations Commission. That same year, the majority of Australian states—excepting Western Australia—transferred their industrial relations powers to the Federal government, retaining only authority over their own public service agencies.

A-Short-History-of-Australian- Employment-Law
Businesses must treat workers fairly. Unfair dismissal, adverse action and other laws are important

The Fair Work Act 2009 was also enacted that year. In 2013, Fair Work Australia was renamed the Fair Work Commission, and a Fair Work Ombudsman was appointed. The Fair Work Act was amended in 2018 to add the right to unpaid family and domestic violence leave to Australia’s National Employment Standards.

During the pendency of the COVID-19 pandemic, the Act was tweaked and amended on a number of occasions to provide for further unpaid parental and other forms of leave related to the Coronavirus and its effects. In particular, employees who endure traumatic loss as a result of the Coronavirus, such as the death of a child, were allowed additional unpaid leave entitlement.

Fair work Act

Over the past year (as of this writing), the Fair Work Act has been further amended in significant ways. In 2021, the Supporting Australia’s Jobs and Economic Recovery Act 2021 Amendment was enacted. This Amendment took effect in March, 2021, changing workplace entitlements for so-called Casual Employees.

This Amendment redefined the Casual Employee category. Requiring that every Casual Employee be provided with a copy of the Casual Employee Information Statement. The Amendment provided a statutory pathway for Casual Employees to enter full- or part-time employment under certain circumstances. See below regarding the Casual Employee classification and the required Information Statement.

Sex Discrimination and Fair Work (Respect at Work) Amendment Act

Also in 2021, the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 was enacted.

This Amendment to both the Fair Work Act and Australia’s Sex Discrimination Act 1984 defined sexual harassment and introduced requirements for employers to stop workplace harassment. It clarified that sexual harassment can be a valid reason for dismissal and extended compassionate leave to include miscarriage.

The State of Australian Employment Law in 2022

The Australian employment law regime in 2022 is reasonably robust, providing employees and workers with more protections and entitlements than at any other time in the past.

However, there is much room for improvement. In terms of collective or Enterprise bargaining, there is, additionally, indications that worker protections have been significantly eroded.

No-body-wants-to-be-treated-as-a- slave,-the-days-of-indentured-labor- should-be-gone
No body wants to be treated as a slave, the days of indentured labor should be gone. Adverse action rights are important.

What Is The Fair Work Act (Now)?

The Fair Work Act 2009 is the primary statute underpinning and defining the extent of Australian employment law. It provides the minimum standards and regulations with which employers across the country must comply. Regardless of an employer’s industry or the size of its business.

In general, the Fair Work Act:

  • Provides standards for the terms and conditions of employment;
  • Sets out the rights and responsibilities of employers and employees with regard to employment;
  • Provides rules for compliance with its provisions;
  • Provides for administration of its rules and regulations through the establishment of the Fair Work Commission. The Fair Work Ombudsman, as noted in the chronology above.

The Act provides, in particular, 10 National Employment Standards (NES):

  • Maximum weekly work hours;
  • The right to request flexible working arrangements;
  • Parental leave and related entitlements;
  • Compassionate leave and family and domestic violence leave entitlement;
  • Community service leave entitlement;
  • Annual leave entitlement;
  • Long service leave entitlement;
  • Public holiday entitlement;
  • Notice of termination and redundancy pay rules;
  • The right to receive the Fair Work Information Statement.

The Fair Work Act likewise sets the national minimum wage which must be paid to Australian workers.

The minimum wage is, pursuant to the Fair Work Act, the base rate to be paid to an employee for ordinary hours of work performed. It is a formula, in other words. The specific minimum wage that must be paid to a specific worker is determined by the specific industry-specific instrument or agreement under which they are employed.

This can differ, depending upon whether that instrument is a Modern Award. An Enterprise Agreement, or collectively bargained agreement, or National Minimum Wage order. Regardless, an Australian worker cannot be paid less than the national minimum rate of pay for the specific job performed. Minimum wages are not set in stone under the Fair Work Act. They are reviewed annually to determine any need for adjustment.

The Casual Employment Information Statement: What Is It?

The Casual Information Statement is an information document required to be provided at certain intervals to so-called Casual Employees pursuant to Australia’s Fair Work Act. A copy can be located here.

However, its essential purpose is to provide Causal Employees notice of their rights under Australia’s Fair Work regime. First, the Statement defines who is and who is not a Casual Employee. Under Australian employment law, you are a Casual Employee if you meet the following conditions:

  • You are offered a job;
  • But the employer makes no firm advance commitment that the work will continue indefinitely with an agreed pattern of work;
  • And you accept the work understanding that no commitment to make you a full-bore employee has been offered.

Casual Employee if you are a temporary employee.

In short, you are a Casual Employee if you are a temporary employee. The definition of the term “no firm advance commitment” is further elaborated upon in the Statement. According to the Statement, to analyze whether or not your employer has made “no firm advance commitment” to you, 4 factors must be considered:

  • Your employer can choose to offer you work, and it’s your choice whether or not to accept it;
  • You’ll be offered work when your employer needs you to work;
  • Your employment is described as casual;
  • You’ll be paid a casual loading or specific pay rate for casual employees.

The Statement clarifies that all 4 factors do not need to be present for your classification as a casual employee and that there is no 1 deciding factor from among them. The factors must be weighed to determine whether or not an employee is Casual or not. The balance of the 4-page Statement discuss the pathway to permanent full-time or part-time employment for the Casual Employee. As well as the limits of that pathway and the steps available to the employee if disagreement about that pathway occurs.

Employees-and-employers-have-to-co-exist.-One-cannot-survive-without-the- other
Employees and employers have to co exist. One cannot survive without the other. Negotiating is important, taking your bat and ball and going home achieves nothing. This goes back to the old days of conflict where the only way to resolution.

Enterprise Bargaining in 2022

Enterprise Agreements are workplace agreements bargained between single employers and collectivized workers’ groups or unions. Their terms apply only to that covered workplace, in contrast to the Awards issued by the Commission, which apply to entire industries. Generally, the Fair Work Act governs the framework within which Enterprise Agreements must be bargained. Under the Act, an employer-employee discussion concerning any of the following points may form the subject-matter of an Enterprise Agreement:

  • Matters pertaining to the relationship between an employer that will be covered by the Agreement. That employer’s employees who will be covered;
  • Matters pertaining to the relationship between the employer(s) and the employee organisation(s) that will be covered;
  • Deductions from wages for any purpose authorized by a covered employee;
  • How the agreement will operate.

An Enterprise agreement may be made by a single employer or two or more employers who are “single-interest” employers (i.e., engaged in a joint venture or are related corporations, etc.). It may not be struck with a single employee only.

Enterprise bargaining criticism

This statutory requirement for single or single-interest employer participation in Enterprise bargaining has been criticized as a flawed feature of Australian employment law. Other countries, such as New Zealand and Germany, have implemented sector-wide collective bargaining systems in which workers’ ability to collectively leverage fair wage and conditions. This guarantees from multiple employers across an entire sector may be enhanced.

In any case, in Australia, collective bargaining generally involves a single employer. Under the Fair Work Act, striking and other forms of industrial action are not permitted unless conducted in accordance with the Act’s specific provisions. In particular, such action is illegal unless it occurs in the process of the negotiation of a new Enterprise Agreement.

Collecting bargaining, under the Act, is regulated by the Commission.

Fair-work-court.-an-important-part-of-the-Australia-workplace-way-of-life
Fair work court. an important part of the Australia workplace way of life

Where Is Australian Employment Law Heading in the Future?

According to a recent PriceWaterhouseCoopers (PwC) study, 38% of workers in Australia are considering leaving their current employers in the next 12 months.

This is being called, in Australia as well as in the United States and elsewhere, the Great Resignation. The PwC study explores, in particular, what it is that Australian workers want from an employer. Perhaps unsurprisingly, the #1 condition or benefit that Australians seek is: compensation.

Despite all the of the discussion in the media and elsewhere regarding employees’ increased demand for remote work functionality and other such (understandable and rightful) demands. Fair wages and health and leave benefits continue to be Australians’ first priority in the employer-employee relationship.

Rise in insecure work

Meanwhile, the Australian Council of Trade Unions (ACTU) has likewise described a rise in insecure work in Australia in a recent options paper. According to the ACTU, while Australia’s economy has grown over recent decades, not all of Australia’s workers have been able to share in the country’s prosperity.

A key reason for the rise in economic insecurity found by the ACTU is the proliferation of poor quality, insecure jobs. In other words, the number of Casual Employees, as described above, has increased. As the ACTU illustrates the problem in its paper:

A primary school teacher is engaged on rolling one year fixed contracts with no income over the long summer break and no guarantee of work the following year. A labour hire worker in a warehouse in Melbourne has performed the same work as his workmate beside him for six months but still receives lower pay, inferior entitlements and no job security. A home care worker is engaged on a part-time basis but with no predictability as to weekly hours of work or income

ACTU

The ACTU concludes that the workers across disparate industries and sectors in Australia are experiencing the same phenomena. The shifting of risk of business failure from employers to employees in the form of attacks on wage minimums and on sick leave and other entitlements.

Permanent casuals

Over half of casual employees, the ACTU finds, are “permanent casuals” with long-term, ongoing and regular employment. But with none of the basic entitlements associated with permanent employment. Likewise, 1.1 million employees are, according to the ACTU, independent contractors vulnerable to exploitation. These contractors are more likely to work very long hours without the same minimum wage, minimum conditions, or protection from unfair dismissal as full-time or part-time “permanent” employees.

Independent contractors are not covered by the Fair Work Act and do not have access to Fair Work Australia, notes the ACTU. These trends are on the increase. Thus, the future of Australian employment law is destined to be a dynamic one. As a workers, employees, casual Employees, unions, and employers push and pull at the existing rules and regulations that have evolved in Australian law over the past 120 or more years.

Who will emerge on top? Is it required to be a zero-sum contest? Every working Australian would surely prefer that it not be. That employers recognize that the bottom line need not be the driving force behind all employee interaction or hiring or dismissal decision.

Unfair dismissal and well-moneyed opposition

Any further legal advance, though, would seem to be up against the same well-moneyed opposition that it ever has been. With ever more sophisticated techniques for avoiding its responsibility to workers at its fingertips. Thus, it is that much more vital that, if you believe that your rights under the Fair Work Act or other workplace rule or regulation has been or is being violated. Or that you have been dismissed unfairly that you contact an experienced Australian employment rights representative.

Threatened-with-dismissal,-not-paid- properly,-serious-misconduct- allegations,-workplace-investigations,- call-us.
Want advice? We are here for you. Threatened with dismissal, not paid properly, serious misconduct allegations, workplace investigations, call us.

Conclusion to A Short History of Australian Employment Law

A Whole New Approach Pty Ltd. is workplace advisory service. It is dedicated to representing employees only in unfair dismissal, harassment, and other workplace legal disputes. (we are not lawyers). AWNA are the workplace advisors that employers fear. We stand with you as warriors against discrimination, bullying, wealthy employers. To help you to achieve the best outcome possible in your particular circumstances.

All casual employment matters, workers rights, employment rights, forced to resign, adverse action, been sacked, call us immediately.

If you feel that you have been discriminated against, harassed, or have been unfairly dismissed, contact us now to schedule your initial free consultation Let’s continue to move the history of Australian employment law forward—together.

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Fair Work Australia, click here

FAQ,s click here

We still trust Fair work Australia, click here

Casual Employee Rights, click here

Workplace whistleblowing

workplace-whistle-blowing
Toxic workplaces and being forced to be a whistleblower come in all shapes and sizes. There is a sinister underbelly to some of Australia’s largest companies.

Workplace whistleblowing

Whistleblowing in the workplace has become one of the most powerful ways of gauging the public’s attention. Shedding light on corporations’ wrongdoing, especially with the high-profile revelation of Facebook’s unethical behaviors by its ex-employee. For people who have been dismissed, especially when they feel like they face injustice from the company, whistleblowing can be seen as an effective outlet to air the company’s “dirty laundry”. By exposing toxic behaviors to the public and to right what has been wronged.

Dismissal and whistleblowing

For a lot of the employees who have been dismissed, they consider themselves as victims of toxic company culture such as bullying, unjustified warnings, unnecessary threats of dismissal sexual harassment and racism. Recently, allegations against Virgin Airline’s workplace culture have come to the spotlight. As the ex-chief pilot publicly accused Virgin’s CEO of bullying behaviour after being dismissed. In another case, an African American employee went against Tesla in exposing the company’s culture of racism.

Many and many ex-employees have attempted to come out to reveal toxic or discriminatory company culture via the media. Social media platforms have also become ways for ex-employees to tell their stories in unfolding the unfair treatment they are subjected to by the employers. This is a dangerous game, that creates uncertain scenarios. Employers are increasingly dismissing

employees for this behaviour, and countering with defamation claims.

Most companies have social media polices, which is a way of indirectly shutting the employee down from using the social media as a forum to whistle blow.

Whistle Blow legislation

The Corporations Act 2001 (Cth) (Corporations Act) and the Taxation Administration Act 1953 (Cth) both contain protections for whistleblowers. Amending legislation that came into effect on 1 July 2019 strengthened the protections in these Acts. This factsheet focuses on the strengthened protections under the Corporations Act.

You can learn more about ASIC, if you click here, Download a complaint form, click here

employee-safety-comes-first
Safety is the largest area of whilst blowing, Employees cannot stand by and watch co workers be injured and potentially killed.

Whistle blowing limitations

However, the power brought by whistleblowing has limitations. Revealing a company’s alleged wrongdoing is only effective when it gains public attention. If you are exposing a local small business’ toxic workplace culture or misdeed, not a lot of people would be interested in the story or care about it enough to affect a change. For bigger corporations, the exposé can attract media attention and public awareness. But you can potentially backfire by facing defamation claims brought by your ex-employer. That your whistle blowing act contains untrue statements against the company and damages the company’s reputation.

Note that bigger corporations would be inclined to put pressure on any whistle blowers with court action. Considering they can afford to do so with all the money and legal resources. Large corporations also have more incentives to employ fear tactics or intimidations to scare people from carrying out any whistle blowing acts against the company, in fear of reputational damages. Threats of dismissal is common place

For example, it has been revealed that the boss of BrewDog, a multinational brewery, attempted to intimidate former staff from unmasking the brand’s toxic culture in a critical documentary. Ex-employees often feel that they are at a disadvantaged and powerless position in going against big corporations. Another example of this is TV stations, owned by large corporations. They at times come out with outrageous programs, news stories. On occasions setup’s, absolute breaches of privacy. Of course the public love it, ratings are up. Who’s got the money to take them on?.

Look at the show “cop’s”, RBT, “highway patrol”, the only cars the police pull over are poor whites and poor blacks in low economic suburbs. Of course they don’t have the money to fight back. What rich people in BMW’s don’t speed?, give me a break.

Its in the workplace

We see this in the workplace its a form of “unconscious bias”. As it was referred to in the Victorian Supreme court, by Justice Richards in a recent case on rights in the workplace to the same pay for females. 80 percent of our enquires (10,000 a mth, we know what we are talking about). Are from working class western or outer suburbs around, Brisbane, Sydney and Melbourne. This cannot be a coincidence. If the employer is going to bully, dismiss, underpay, sexually harass. They don’t pick the richest employee in the office that for sure.

A lot of firms, including us, do no win, no fee work. However employees still need to survive while their unfair dismissal or general protections claim is processed, settled. We see this with sexual harassment claims where employees take early settlements, below what there claim is worth, they need to survive. Whistleblowing the same, do I face potential dismissal because I want to stand up for everybody? Or do I continue to pay the bills. That’s why a lot of whistleblowing claims are lodged after employees are dismissed. Nothing to lose now.

No incentive to investigate

On the other hand, what much can be done by uncovering these misconducts or toxic cultures anyway? Large corporations are no strangers to any toxic workplace allegations, including Rio Tinto and Sony Music, just to name a few. However, there has been a lack of action being done to mitigate these concerns of toxic workplace. We are yet to see any proper inquiry into toxic workplace culture led by any relevant official bodies.

Big companies are not incentivized to investigate and address any issues related to their toxic work environments as they do not consider these actions to be cost-effective. Alternatively, the toxic traits may be embedded in the company’s culture enabled by higher managerial level. A simple act of whistle blowing by ex-employees may not be powerful enough to affect corporate systemic changes and bring justice, more needs to be done.

Employees are choosing where to work

Interestingly employees when looking for work, changing employers, are looking past just the salary when deciding where to work

do-not-resign
Many times you just feel like walking away. Maybe its the best thing to do, maybe it isn’t. Get advice before you press that button

Workplace whistleblowing

I hope this article was of some assistance to you. You certainly will have that feeling like your on your own. Your always welcome to give us a call and discuss where your at. We are A Whole New Approach, leaders in workplace commentary and representation. Facing dismissal for raising your concerns, feel your being forced to resign. Facing a workplace investigation call us immediately. Advice is free, prompt and confidential. We work Australia wide.

Call 1800 333 666

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What does being a casual employee mean?

What-does-casual-employment-mean?
In the modern economy, casual workers come in all roles

What does being a casual employee mean?

Casual workers, among all other kinds of employment, are affected most by the inconsistent workplace restrictions and lockdown rules brought by the pandemic. They are usually the first to lose their jobs when a business closes down due to economic pressure. In fact, two-thirds of the people who lost a job during the early pandemic period are casual workers. In the hope of looking after the casual workforce, the government has sought to introduce new protections for casual workers’ rights. This article “What does being a casual employee mean?” will explore the nature of casual employment and any new protections provided to casual workers.

What is a casual employee?

Section 15A of the Fair Work Act 2009 provides the definition of a casual employee as someone who makes no firm advance commitment to continuing and indefinite work to the employer. Firm advance commitment can be considered with regards to the following factors set out in s 15A(2) of the Fair Work Act 2009, including:

  • Your employer can choose to offer you work and You have the choice to work or not
  • When your employer needs you to work, you will be rostered to work
  • Your employment type is described as casual
  • You are entitled to casual loading or a specific pay rate unique to casual employees

A casual employee does not have an agreed pattern of work. This meaning that a casual employee has no consistent set days of the week that a casual employee would be required to work. Their working hours are wholly dependent on shifts being offered by their employers. They can choose to work on the hours they are rostered on or reject work. However, it does not mean that casual employees cannot have a set pattern of work hours.

What-does-being-a-casual-employee-mean?
Regardless of your hours, you do some some rights, including not being unfairly dismissed (must qualify)

How long can an employee be casual?

Casual employment while seeming to lack consistency and security, can offer flexibility to work arrangements. This is especially desirable for young people who have to work and study at the same time. In electing to work for different hours and on different days, they are able to fit in work around their busy schedules. Not to mention the perks of casual loading on top of their hourly rate to help with their financial stress. However, there are downsides to casual employment, including not having entitlements such as annual leave and paid personal leave.

Because of these benefits to some (including older employees, working mothers, employees recovering from illness or injury). Some employees can be casuals for many years. There is no time limit. This is particularly prevalent in retail, supermarket chains and service stations.

New rules regarding conversion from casual to part-time employment

Amendments have been recently added to the Fair Work Act 2009 since March 2021, introducing new workplace entitlements and obligations employers have for casual employees. The new changes include:

  • Insertion of section 125A and section 125B that deal with Casual Employment Information Statement;
  • Insertion of section 15A that deals with the meaning of casual employee; and
  • Insertion of Division 4A regarding casual conversion.

The new sections in clarifying the meaning of casual employee seems to be the aftermath of the Full Federal Court’s decision on Workpac Pty Ltd v Rossato [2020] FCAFC 84 where the full court left confusion and held Mr Rossato to be a permanent employee of the company despite being engaged via casual employment engagements. This decision has been overturned by the High Court in WorkPac v Rossato & Ors [2021] HCA 23 in holding that an employee labelled as casual under an award or enterprise agreement would be casual for all purposes.

Must offer permanent employment

The third change that deals with casual conversion has sparked a lot of controversies. Under Division 4A, an employer must make an offer in writing to their casual employees to convert to full-time or part-time employment. If they have worked there for at least 12 months, during which the employee has worked on a regular pattern for 6 months. “Must” indicates that employer has to offer casual employee the conversion option. It is not up to the employer’s discretion to provide the offer or not. There are exceptions, however, when the employer is not obliged to make the offer under section 66C on the reasonable grounds listed as follows:

  • The employee’s position will not exist in the next 12 months;
  • The employee would be required to work significantly less hours under the offer;
  • There would be a significant change to the days and times the employee is obliged to work and does not accommodate the employee’s availability;
  • The offer would not comply with a recruitment or selection process required under the law.

Under section 66D of the Fair Work Act 2009, when an employee is given an offer, he or she must provide a response within 21 days. The response can be whether the worker wishes to accept the offer of conversion or decline the offer.

Similarly, a casual employee is also entitled to request an offer from the employer of conversion when certain requirements of their employment are satisfied (a period of employment for at least 12 months with 6 months under a regular pattern of work hours). The employer is obliged to accept the request, unless the reasonable grounds listed above apply.

Everybody-should-get-along-avoid-a-dismissal
Everybody (employee and employer) should be able to work together, for each others benefit

New path way for casual employees

The new introduction of Division 4A of the Fair Work Act 2009. Provides a new pathway for casual employees to transit their employment into a more secure type of employment. Either part-time or full-time, to have access to entitlements and leave. Casual workers then would be facing the difficult decision one year into their employment when they meet the criteria for casual conversion.

On one hand, converting from casual to part-time or full-time would allow them to gain access to paid leave. They can happily request for sick leave or take days off for holidays without having the fear of losing income or losing their jobs. In the alternative they will lose the privilege of casual loading. Also not having to make firm and advance commitment to their employment. This means that they will have consistent working hours on set days. Which is reasonable, considering that they will only be eligible for the conversion if they have been working on a regular pattern for at least 6 months. However, losing the casual employee privilege would mean that employees generally have less flexibility guaranteed for their work schedule. They can no longer reject their shifts if they are rostered on.

Not everybody wants to be a permanent employee

People who work multiple jobs or university students may particularly be disadvantaged by this conversion. Losing casual loading also equates to a reduce in income, even though working hours for the employee remain the same. Some may have to pick up extra hours to satisfy their ends meet without casual loading. Hence the conversion would also not be favourable for those.

Even though casual employees are not obliged to convert to part-time or full-time employment under the new rules. They may nonetheless face external pressure in accepting the conversion offer. Casual employees are generally in a weaker bargaining position compared to their employers. Some may feel like they are obliged to accept or reject the offer to please their employers in the fear of losing their jobs.

casual-or-permanent-employees-can-work-from-home
There are benefits whether your a casual or permanent employee. You have to work out what’s best for you.

Security of employment can bring benefits.

For others, the conversion to a more secure type of employment may be beneficial. However the opportunity to convert is denied by their employers. Investigation shows that six months after the implementation of the new casual conversion law, only approximately 1% of Australian universities’ casual staff had been converted.

After requesting casual conversion, university staff were hit with a generic response that the university “determined that there are reasonable grounds (in accordance with the legislation) not to offer to convert [their] role to a permanent position”. It seems like regardless of the legislative changes, the employer can still try to twist around with the legislation by denying conversion and having to offer entitlements to their employees.

On another hand, the protection offered by the new amendments to the Fair Work Act is restricted and only available to certain casual employees –they have to have worked for a minimum period and have to have a regular working pattern for a fixed period. Casual employees that do not meet both criteria listed in the Act are still left unprotected as they are not eligible to convert to permanent employment. 

The reform that aims to provide more security to casual employment can still create loopholes for employers to evade their legal obligation to covert casual employees to permanent. Or in some extreme circumstances, employer may try to terminate the casual employment right before the employee would become eligible for the conversion. They can continue to hire short-term casual Avoiding the legislative requirement to offer conversion, which in turn prompts an even higher turnover rate of the casual workforce.

This legislation may have unintended consequences.

Can you terminate a casual employee?

Its a truly daily hire situation, yes the employer can terminate you at any time. If its less than 6 months service, or 12 months if its a small business under the Fair work act (less than 15 employees) they can be dismissed, regardless if casual or permanent. This is referred to as the qualifying period. If the employee is out of these qualifying periods and the work is on a regular and systematic basis. Then the employee has access to the unfair dismissal laws. (you cannot be dismissed for unlawful reasons at at any time).

Can casuals get fired for no reason?

If the employee is a casual employee, by definition a daily hire person, they can be fired at any time. The employee receives a 25 percent loading to substitute in part for this. If the employment is regular and systemic and meets the qualifying period of employment under the Fair work Act. Then they subject to the unfair dismissal regime under the Fair work Act (s387). This means the employer must provide a valid reason and procedural fairness must apply.

teamwork-is-important-in-the-workplace
Be part of the team, what’s improtant to one is not important to another. Don’t end up dismissed in the confusion.

New Victorian rules for casual sick leave

In March 2022, Victoria introduced the Victorian Sick Pay Guarantee that grants casual worker up to 5 days of sick and carer’s pay per year. The pay is calculated according to the national minimum wage for casual and contract workers (currently at $20.33 per hour). With the maximum pay a casual worker is entitled sits roughly at $772.60. This new scheme is yet another attempt by the Victorian Labor government to provide for security to casual workers. To allow them to take time off without worrying about losing their jobs or income.

Conclusion: What does casual employment mean?

In conclusion, the recent amendments to the Fair Work Act 2009. Seek to provide a clear and legal definition of casual employment. It grants more security to casual employees by introducing the option to convert to permanent employment. It must be noted that the conversion available under the Act is only limited to certain casual employees who meet the criteria to be eligible for conversion.

I hope the article was informative for you. Some of the questions around casual employment have been answered. It was a bit technical, however hopefully its informed you of your rights and options. Have any questions around casuals, workers rights, employment rights, probation related issues. Fair work Australia related enquires, give us a call. Advice is free.

Call 1800 333 666

reaching-out-for-help-avoid-a-dismissal
Reach out for help. Get advice. Don’t end up dismissed or the misconception of what your employments rights are.

We work on a national basis, including, Victoria, NSW, QLD

Articles published relating to casual employment meaning

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Workers Rights what are they?

Workers-Rights-what-are-they?
We all know we have workers, employment rights, but what are they? How do i ensure i protect myself? Not get dismissed? Unfairly made redundant/ Sacked on sick leave? I will answer these questions today.

Workers Rights what are they?

Workers Rights what are they? Since 1 January 2010, the Fair Work Act 2009 (Cth) (the Act) has been in operation. This Act applies to most Australian workplaces and regulates the employer/employee relationship by stipulating all workers rights. Contained within this legislation are the National Employment Standards (NES). General protections provisions, the rights of full-time, part-time and casual workers, unfair dismissal provisions and much more.

The NES and Contracts of Employment

NES has 10 minimum employment entitlements that must be provided to all employees by employers. The NES cover the following:

  • maximum weekly hours of work
  • entitlements to leave and public holiday pay;
  • flexible working arrangements;
  • the provision of a Fair Work Information Statement; and
  • notice of termination and redundancy pay.

The NES provide a safety net for employees and stipulate a variety of workers rights. NES guarantees the minimum standards of work conditions and employee work entitlements. Whether an employee is employed on a full time, casual or part-time basis. However, only certain NES entitlements apply to casual employees.

The minimum workers’ rights and entitlements in Australia, as set out in the NES, are not replaced by a contract of employment entered into by an employee and an employer. If an entitlement in a contract is less than the NES or excludes the NES, that term has no effect as you cannot contract out of statute or law.

For example. If a full-time employee agrees in their contract of employment to only receive five days personal/Carer’s leave per year. That employee (despite what the contract says) is still entitled to 10 days paid personal/Carer’s leave.

This is because the NES state that a full-time employee is entitled to 10 days of paid personal/carer’s leave per year. However, if the contract of employment provides entitlements or terms that are of more benefit or favourable to an employee. Those terms and entitlements are enforceable as they are above the minimum workers rights set by the NES.

Great Boss’s pay properly

I-want-to-be-treated-fairly-not-be-dismissed
We get allot of calls, about how they have a great boss, but he doesn’t allow me time off. Doesn’t pay overtime. I haven’t had a holiday for years and they won’t tell me how much holidays I’m owed. Of course he’s great, he’s ripping you off. He’s getting the benefit. Your entitled to what’s right.

The Rights of Full-Time Employees

Full-time employees are employed on a permanent basis under an ongoing contract of employment. Under the NES, permanent full-time employees are entitled to the following minimum conditions of employment:

  • to work a maximum of 38 hours per week. However, an employer can request or require that an employee work additional hours, but only if the additional hours are considered reasonable;
  • the right to request a flexible working arrangement if the full-time employee meets the eligibility requirements. And are either a parent or a person responsible for the care of young children. A carer, have a disability, are 55 years of age or older or experiencing violence from a family member. (or providing care or support to immediate family or a member of their household experiencing violence).
  • paid annual leave of four weeks per year;
  • unpaid parental leave of up to 12 months and the right to request unpaid parental leave for another 12 months. To be eligible, a full-time employee must have completed 12 months service with their employer. Have or will have the responsibility of a child;
  • paid personal/carer’s leave of up to 10 days per year, two days unpaid carer’s leave and two days of compassionate leave as required;

Written notice

  • written notice of the day of termination, in the event an employee’s employment is ended by their employer. However, if an exception applies, such as the employee’s employment was terminated due to the employee’s serious misconduct. An employer is not obligated to provide the employee with notice.
  • Under the NES, an employer is also required to give an employee a certain amount of notice. Or pay a notice payment in lieu of the employee working out the applicable notice period. The amount of notice depends on how long the employee has worked for the employer.
  • If an employee’s service with their employer amounts to one year. The employee is entitled to a minimum of one week’s notice from their employer. Alternatively a payment of one week’s pay instead of the employer giving the employee the notice.
  • The NES also provides that if an employee has completed two years continuous service with their employer and they are aged 45 years or over, they are entitled to an additional week of notice. It is important to note that if an employee’s contract of employment sets out notice arrangements that are more beneficial than the minimum provided by the NES, then those arrangements will usually apply.

Employers Obligations

employee-rights,-don't-be-bullied-don't-be-dismissed
Its a criminal offence if your employer knowingly cheats you out of your entitlements, wages. The various authorities take it very seriously if your not paid as per the NES and the award system.

Redundancy entitlements

  • in the event an employer makes an employee’s position of employment redundant. A full-time employee may also be entitled to redundancy pay under the NES. The NES provides for up to 16 weeks of redundancy pay is payable depending on the length of their service with their employer.
  • However, redundancy pay is not payable in all circumstances under the NES. For example, if an employee works for a Small Business Employer, then they are not entitled to redundancy pay under the NES. Though, it is important to also check an employee’s contract of employment for any entitlements in relation to redundancy pay; and
  • on the commencement of their employment with an employer, an employee must be provided with a copy of the Fair Work Information Statement.
  • The statement contains information about the NES, modern awards, agreement making, the rights and benefits of employees, and the roles of the Fair Work Commission and the Fair Work Ombudsman.

The Rights of Part-Time Employees

Part-time employees are also employed on a permanent basis, but they work less than 38 ordinary hours per week. Part-time employees are entitled to the same terms and conditions of employment as a full-time employee, however, their entitlements are generally pro-rated to how many hours of work they perform each week.

For example, a part-time employee is still entitled to four weeks of annual leave per year under the NES, but this entitlement is calculated on how many hours the part-time employee works each week. This means that if a part-time employee works 20 hours per week, their annual leave payment is calculated on a 20 hour week (and not a 38 hour week).

The Rights of Casual Employees

Casual employees do not have guaranteed hours of work, are employed on a per shift basis, do not receive paid leave entitlements for time away from work, notice of termination and any associated payments or redundancy pay.

Casuals employees are paid for each hour they work and their pay is based on the number of hours worked each week. However, a casual employee is not guaranteed a set amount of hours of work per week like an employee employed on a permanent basis is.

In light of the nature of casual employment, casual employees are paid a higher hourly rate of pay, called a casual loading. This loading is in lieu of some benefits that full-time and part-time employees receive from the employer. Such as paid annual and personal/carer’s leave, notice of termination and to compensate for the lack of security of their employment.

I-love-my-job,-i-don't-want-to-be-unfair-dismissed
Some employees, forgo entitlements because they bare happily employed. They want to help out. Your employer has a legal obligation to pay you properly. The article has made the point, the employee and the employer cannot contact out of this. Remember the onus is on the employer.

Casual employees are entitled to the following minimum conditions of employment.

  • to work less than 38 hours per week and only work reasonable additional hours if it is reasonable.
  • two days unpaid carer’s leave and two days unpaid compassionate leave for each occasion that this type of leave is requested.
  • unpaid community service leave.
  • to be absent from work on a public holiday. However, unless a casual employee works the public holiday they will receive no payment for this day off.
  • unpaid parental leave entitlements and the right to request flexible working arrangements. If they have been employed with their employer for 12 months or more on a regular and systematic basis with an expectation of ongoing employment.

Unfair Dismissal

The Act also provides for other fair conditions of work and protections for all employees. As part of a workers rights, they are protected from unfair dismissal under the Act. If a permanent employee is of the view they have been unfairly dismissed they are eligible to make an unfair dismissal claim.

This is if they have worked for their employer for six months or if their employer is a Small Business Employer. A period of 12 months a Small Business Employer is an employer who employs less than 15 employees. In addition, employees must earn less than the high-income threshold or be covered by a modern award or enterprise agreement.

Casual workers also have the right to lodge a claim of unfair dismissal if they were employed on a regular and systematic basis with a reasonable expectation of ongoing work.

Applications for unfair dismissal must be filed within 21 days from the date the dismissal took effect. Late filing may be accepted but only if the Commission finds there has been exceptional circumstances. If a dismissed employee is filing outside the 21-day period, they will need to provide an explanation of the exceptional circumstances that caused them to not file within the statutory time period.

General Protections

The Act also provide workers with protection from adverse action under the General Protections provisions. Employers are prohibited from taking adverse action against an employee because of a workplace right. Because they have exercised a workplace right. Participating in industrial activities and protects against discriminatory treatment on the basis of protected attributes and sham arrangements. Adverse actions can include dismissal of an employee.

However it encompasses a range of other actions such as prejudicing the employee, injuring the employee in his or her employment or discriminating against them.

Whilst there is no jurisdictional criteria as per the unfair dismissal regime, employees face the difficulty of linking the exercising of a workplace right and the adverse action. The adverse action must have been taken because of the workplace right (i.e. complaint). 

workers-rights-what-are-they
Not sure, what to do? My rights? Get advice

Placing undue influence (coercion)

General protections also provide workers with protection from their employer coercing them into taking (or not taking) a particular action or placing undue influence or pressure on the employee to change their conditions of work or knowingly or recklessly misrepresenting a workplace right or obligations in relation to an industrial activity.

Applications for general protections must be filed within 21 days from the date the dismissal took effect. Late filing may be accepted but only if the Commission finds there has been exceptional circumstances. If a dismissed employee is filing outside the 21-day period, they will need to provide an explanation of the exceptional circumstances that caused them to not file within the statutory time period.

Discrimination

Workers have a right to be protected from discrimination in the workplace. It is unlawful for an employer to take action against an employee because of their race, colour, sex, sexual orientation, age, physical or mental disability. Additionally marital status, family or Carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Bullying

As part of their workers’ rights, employees are protected from being bullied and harassed at work. The Act has anti-bullying provisions and employees can make an application to stop bullying if they are being bullied in the workplace. Bullying has to be repeated and unreasonable management action.

Workers rights what are they?, closing comment

Workers rights is very much a individual thing. Each employees circumstances are different. a right that’s important to one employees is not necessarily important to another. Do you need free and confidential advice about your unique workplace situation? Are you looking at making a claim but are unsure about how to approach the situation? Workers rights what are they?, make the call, find out today

To discuss possible representation or to seek advice regarding your unique circumstances, please give us a free call on 1800 333 666. All Fairwork Australia or Fair work Commission matters. Including, abandonment of employment, probation, serious misconduct, constructive dismissal issues.

We work in all states, including Victoria, NSW, QLD, SA, WA, TAS

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What does being a casual employee mean? click here

Workers rights in 2022, click here

Dismissed for not dressing properly, click here

Fair Work Australia – Who are they?

Fair-Work-Australia -Who-are-they?
Fair work Commission (FWC) is located in every state and territory.

Fair Work Australia – Who are they?

This is the term commonly used by the public, people using search terms to describe the Fair Work Commission.. Australia’s national workplace tribunal. According to the Google statistics, more people search Fair work Australia, than Fair work Commission or FWC. This is main reason I thought I would write a article on it, to minimize the confusing and bring some clarity to the situation.

Fair work Australia

Fair Work Australia was established in 2009. It replaced the Australian Industrial Relations Commission (AIRC) following the introduction of the Fair Work Act 2009 (Cth) (FW Act). In 2013, Fair Work Australia was renamed the Fair Work Commission. Google Research suggests that Fair Work Australia is the preferred name for the Fair Work Commission as it is more often searched for. In any event, Fair Work Australia is an independent workplace relations tribunal. With the power and authority to regulate and enforce provisions relating to minimum wages and employment conditions, enterprise bargaining, industrial action, dispute resolution, and termination of employment.

The FW Act was an attempt to create a more national system for regulating industrial relation matters in Australia. Each state has the discretion to hand over some or all of their industrial relations powers to the Commonwealth. Should a state decide to refer their powers to a centralized and national industrial relations system, all the employees of that state would effectively be covered by the national FW Act. Since the introduction of the Fair Work Act, all states except Western Australia have referred their powers to the Commonwealth.

There are however certain government bodies and charities that are not covered under the FW Act and are government by state-specific industrial relations laws. Prior to lodging any claim with the Fair Work Commission, it is important to confirm you are covered under the FW Act.

Fair-Work-Australia-Who-are-they?-
court-room
Fair work Commission (Fair work Australia) has its own court rooms.

Fair Work Australia’s Functions

Since the Commission’s introduction in 2004, The FWC came into established on the 1/7/2009. All FWC members were previously members of the Australian Industrial Relations Commission (AIRC). The FWC has a President (Justice Iain JK Ross AO), two Vice Presidents, a number of Deputy Presidents, Commissioners and conciliators. The General Manager reports to the President and is responsible for administration, a position that replaced the Industrial Registrar under the previous AIRC.

The key features of the Fair Work Australia system are:

  • 11 minimum National Employment Standards
    • awards that apply nationally for specific industries and occupations
    • the national minimum wage
    • protection from unfair dismissal.

Awards, together with the National Employment Standards and the national minimum wage, make up a safety net of entitlements for employees covered by the Fair Work system. The Fair Work Ombudsman is often confused with the Fair Work Commission or Fair Work Australia. The Fair Work Ombudsman essentially deal with the following:

  • offering people accurate and timely information about Australia’s workplace relations system
    • educating people working in Australia about fair work practices, rights and obligations
    • investigating complaints or suspected contraventions of workplace laws, awards and agreements
    • litigating to enforce workplace laws and deter people from doing wrong in the community
    • building strong and effective relationships with industry, unions and other stakeholders.

Fair Work Commission cannot give legal advice

In contrast, the Fair Work Commission cannot give legal advice and does not enforce minimum pay and aware entitlements. Instead, they are the independent government body to which you lodge your complaint. The Commission has the power to:

  • deal with applications relating to ending employment including unfair dismissal, unlawful termination or general protections
    • deal with applications for an order to stop bullying at work deal with applications for an order to stop sexual harassment at work
    • make orders about industrial action, including strikes, work bans and lock outs provide mediation, conciliation.
    • In some cases hold public tribunal hearings to resolve various individual and collective workplace disputes
    • make orders to facilitate enterprise bargaining (including orders for ballots on protected industrial action and good faith bargaining) and to deal with bargaining disputes
    • make workplace determinations in certain circumstances in which enterprise bargaining parties have been unable to reach agreement
    • Issue orders to stop or suspend industrial action
    • deal with disputes about stand downs, and
    • promote cooperative and productive workplace relations and prevent disputes.
Fair-Work-Australia-Who-are-they?-conference-room
Fair work Commission (Fair work Australia) conciliation room

Unfair Dismissal Applications under Fair Work Australia

Over 40% of applications made to the Fair Work Commission are related to claims of unfair dismissals. The Fair Work Commission defines an unfair dismissal as a dismissal that is “harsh, unjust or unreasonable” after assessing a set of criteria. When presiding over a matter the Fair Work Commission does not only assess the question of fairness as to why the employee was dismissed. But they also look into how they were dismissed and whether the employee was afforded procedural fairness.

What this means is that even though an employer may have a legitimate reason to dismiss their employee. If the dismissal itself was not procedurally fair, it may still be deemed to be “harsh, unjust, or unreasonable”. When considering procedural fairness, the Fair Work Commission will make its determination based on three key factors. If allegations were put to the employee in adequate detail if the employee was allowed to respond appropriately. Whether or not the employee’s response was taken into account before the termination was executed.

Promoting positive relations between employee and employer

In the interest of promoting positive relations between employee and employer. The Fair Work Commission provides the opportunity for the two parties to have an informal conciliation before the case is listed for a formal hearing. This is so that both sides have the chance at coming to an agreed settlement without the need for a court hearing. That being said, the conciliation is hosted by an independent conciliator who is part of the Fair Work Commission.

They do not represent or advocate for either employees or employers. With their role only to assist the two in reaching an agreement. While the conciliator will be an independent party to the discussions, they do play an active role in ensuring the proceedings occur in the most beneficial fashion for all involved. Specifically, the role of the conciliator is to:

  • actively help the parties to reach a resolution
    • lead discussions and provide guidance
    • explore the issues
    • challenge views expressed, explore alternatives and comment on possible outcomes

If the conciliation process is unsuccessful in resolving the issue, then the case will proceed to a formal conference or hearing. This is similar to a court hearing, unless the employee discontinues the application. It is often preferable for both parties that any unfair dismissal issues be resolved prior to a hearing. As the process requires extensive preparation and requires representation for both parties.

Fair-Work-Australia-Who-are-they?-
Employers-talking-their-way-out-of-a-unfair-dismissal-claim
Appearing at the Fair work Commission be careful. The employer takes the approach of see no evil, speak no evil, hear no evil. There is the assumption by many employees that the Fair work is there for them, its not. Whilst the Fair work Commission is helpful, its not its there for you, its there for everybody, it must be even handed.

Appearing at the Commission

There are standards for the conduct of all people attending a hearing or conference before any body of Fair Work Australia. The standards help the Fair Work Commission to provide fair hearings for all parties. Enforcing the authority of the Fair Work Australia regime. Providing fair hearings involves allowing all parties to put their case forward. To have their case determined impartially and according to law. The Commission and all parties appearing before it, including representatives, have responsibilities to each other and in providing a fair hearing for all participants.

When coming to the Commission:

  • it is important to arrive early for the conference or hearing because proceedings begin on time.
  • notify the Commission staff upon arrival by approaching them in the hearing or conference room.
  • if delayed it is important that contact is made with the appropriate Commission staff before the hearing is due to start
  • switch off mobile phone or other electronic devices in the hearing or conference room
  • address the Member of the Commission by his or her title (eg Deputy President or Commissioner)
  • in a hearing, stand when addressing the Member of the Commission or to question a witness.
  • bring enough copies of documents. So everyone involved can have a copy (eg three copies: one to keep, one for the other party and one for the Member).

Pros and Cons of Fair Work Australia

When lodging an application in the Fair Work Commission, there are often time limitations which can be problematic for some applicants. For instance, the unfair dismissal and general protections applications have a strict 21 days from the date of dismissal, for a claim to be lodged. Claims beyond the 21-days are rarely accepted and only in exceptional circumstances. This may disadvantage applicants as they may be unable to secure an appointment for legal advice within the 21-day timeframe.

Whilst Fair Work Australia make it clear that representation isn’t required for your claim to be successful. Since the Commission cannot provide advice, it is important that all applicants have the opportunity to seek legal advice. Nevertheless, legal advice is rarely free and so there should be a free legal advice service and representatives that can be accessed for disadvantaged applicants.

We note that in other similar jurisdictions, including to lodge a discrimination claim to the Anti-Discrimination Board NSW. The time limit to make a claim is 12 months, which more accurately reflects the time needed by an applicant to seek legal advice and make a workplace claim.

It-can-be-stressful-running-your-Fair-work-claim,-you-don't-know-what-the- employer-says,-to-beat-your-unfair-dismissal-claim.
It can be stressful running your Fair work claim, you don’t know what the employer says about you, in order to defeat your unfair dismissal claim

Unfair dismissal and general protection claims must be lodged in 21days of termination

Currently, opportunities to extend the time limit for making an application are extremely limited. This fails to reflect the reality of the difficulties faced by dismissed employees. In becoming aware of the FWC general protections application process and accessing legal advice. The Fair Work Commission has consistently interpreted section 366 of the FW Act which provides for an extension of time in exceptional circumstances narrowly. Meaning that out of time applications are rarely accepted.

However, extending the 21-day time limit beyond a month or so, may open the floodgates for an unprecedented number of applications. In addition, given the hearing or arbitration process could take months. The time limit ensures the dismissal is fresh in the applicants mind and details can be easily recalled during the tribunal hearing. A positive aspect of the time limit is that an applicant will generally be allocated a conciliation date with the FWC within 4 to 6 weeks of filing a complaint. This is of significant benefit to clients who wish to deal with their workplace applications quickly and move on with their lives.

Employee-sorting-out-his-paperwork-in-order-to lodge-his-unfair-dismissal- claim
Sorting out his paperwork in order to lodge his unfair dismissal claim

Low cost jurisdiction

Despite the potential limitations, the Fair Work Australia system is usually a low-cost jurisdiction. General protection applicants enjoy a ‘cost free’ jurisdiction in accordance with section 570 of the FW Act. For those complainants who are considering taking their sexual harassment claim beyond conciliation, the risk of adverse costs orders is an important factor to consider.

Unlike claims brought under the SDA, the FW Act provides that generally, parties must bear the costs of bringing proceedings on their own, even if successful. Under the FW Act, a party will only be ordered to pay the costs of the other side if they instituted the proceedings vexatiousily. Or without reasonable cause or if their unreasonable act or omission caused the other party to incur costs.

Lastly, the FW Act creates a shifting or reverse onus of proof whereby the onus is on the employer. Rather than the employee across different types of applications:

  • In unfair dismissal claims, the onus is on the employer to demonstrate the dismissal was fair and just.
  • In general protections applications, the onus is on the employer to establish why a person was not adversely affected, in the workplace. If this onus is not discharged, it is to be assumed that the action in question was taken for a prohibited purpose.

A reverse onus goes some way toward reversing the inherent power imbalance that exists between employers and employees and the fact that it is generally the employer who holds the information relevant to the grounds of a complaint made by an applicant.

Working-through-the-unfair-dismissal- or-general-protections,-can-be-stressful-and-complicated
Working through the unfair dismissal or general protections, can be stressful and complicated, get advice

Conclusion to Fair Work Australia

I hope this article bought some clarity to role of the Fair work Australia regime. It can be complex, lets be honest you rarely get dismissed, or need workplace advise. Make it your business to know what your employment rights are. What we are here for to give your free advice, to get representation, to get the best outcome. At A Whole New Approach P/L we are proud of our staff and outcomes we get get for our clients. Scan through our web site, our blogs. It is clear we know what we are talking about, we don’t walk away from the hard topics. Abandonment of employment issues, sacked, forced to resign issues, workers rights, probation period disputes call us today.

We are located in Victoria, however we work in every state.

Free call 1800 333 666

Articles similar to Fair work Australia

Another article that may be good reading for you on the Fair work Australia, click here

Read more on Fair work Commission general protections Click here

We still trust Fair work Australia protections click here

Useful Links, click here

What’s my claim worth, click here

A short history of Australia employment law click here

What is considered sick leave abuse

What-is-considered-sick-leave-abuse
You have to take care of yourself. sick? Injured? Your entitled to the time to get better, to recover.. If you have accrued sick leave your entitled to be paid for it Don’t be harassed into returning early to work. You have rights, please read on.

What is considered sick leave abuse

What is considered sick leave abuse has become a real issue in the last few months. Of course employers are never happy when you take sick leave, they never have been. They think you have to be committed like they are, which is seven days a week of course. However with the current issues of employees being off on sick leave due to enforced isolation through the COVID-19 rule and enforcement. Having COVID-19 itself and the mental effects of isolation and stress caused by two years of the pandemic and heading into year three. The calls to us have tripled regarding the way employees have been unfair treated and abused regarding absenteeism and sick leave related issues.

Uncaring employees taking advantage of you

Abuse of sick leave refers to employees who, over a period of time, have “gamed” the employers attendance policy. Exploitation of sick leave policy may range from employees not calling in or not showing up for their shifts, exhausting their available leave every month, and requesting extra time off when well.

Every time there is extra work to be done, knowing its going to be a busy day tomorrow, surprisingly employees are then sick, this places an extra burden on existing staff to carry the extra work. Also in these days of austerity, company’s do not have any spare labor and it falls to existing staff to do the work. Doctors certificates, particularly around the issues of mental health, bullying are more common than 20 years ago.

All-employees-have-rights,-its-how-you-excise-them-is-the-key.-Don't-be-dismissed
All employees have rights, its how you excise them is the key. Don’t be dismissed

Schemes and abuse by employers

This occurs obviously when the employee in the view of the employer is gaming, lying, taking advantage of the the employer, the following are examples.

  1. Insist on doctors certificates every time the employee is away, even for part days to attend appointments.
  2. The employer insist they accompany the employee to the doctor’s, want to meeting with the doctor to discus the illness or injury.
  3. Want to conduct their own assessment in the workplace regarding your injury and ability to perform your duties.
  4. Employers want to get their doctors to examine you, they want access to your medical records.
  5. Constantly tell you your not injured, your just lazy, just get over it, its all in your head, your letting the team down, your not loyal to the company
  6. Encourages co workers to bully you, say there’s nothing wrong with you, we are stuck with doing your work while your away, probably have a good time or rest.
  7. Start giving you menial tasks, stripping away your substantive role, setting triggers to make you resign.
  8. Isolate you from others, indicate to you there is no future, no promotion, we don’t know why your still here.

How Employers react to employees taking sick leave

The list is not exhaustive, but given the amount of calls and emails we receive, daily, weekly, its got some sameness about it, as to how some employers react to sick leave. There are allot of good employers out there who clearly go to exhaustive lengths, far exceeding any legal obligations. Our world at A Whole New Approach is the bad employers where its all about them, staff are numbers, its profits that matter. Dismissals are common. This is despite the evidence showing if you allow a workforce to be healthy, to recover, to get fit, who have EAP (Employee assistance programs) in place, productivity will increase.

Thankfully, programs to increase the wellbeing of workers have been found to provide significant returns. The Australian Government states that for every dollar invested in the health of workers, on average $5.81 for will be returned in savings.

 Eoghan Mackenna exercise physiologist and director of occupational health specialists, Logic Health,

Sick leave abuse, where to from here

Absenteeism and poor performance are without a doubt two of the most challenging employment management issues that employers struggle with on a continuous basis. Employers become despondent about the impact on productivity and service levels, and increasingly frustrated with employees who are unreliable and cannot be trusted to deliver. Looking for a quick fix when reaching the point where frustration levels become intolerable, is not the answer.   

Judith Griessel Labour Law Specialist, Legal Consultant and Accredited Mediator

You can see from the above statement the appalling stance employers are taking and their advisors are stating. So you can see now why employees Google “what is considered sick leave abuse”. Researching sick leave abuse employers are advised by their representatives to:

A) Look for the lies the employees are giving for the reasons for being ill.

B) Look for the patterns of the days employees are off.

C) Closely monitor the employee.

D) Consider mentioning to the employee that your thinking about hiring a replacement

E) Longer term ill or injured employees considering terminating them.

F) Document missing days

G) Monitor the employees social media, see that their doing after hours

H) Closely examine the medical certificates, have been tampered with, dates changes, different doctors used.

Some employers don’t have a caring bone in their body

Its not just the employers advice, its the tenor of the advice, not a caring bone in the employers body. A employee dismissal is the answer to every problem. Why not find out what’s really wrong before commencing these bullying, heavy handed actions. Is there anything wrong with finding out that the employee of 20 years service? Who may have cancer, heart complaints, their partner has dementia and need care or be taken to appointment. Is the workplace culture that toxic that nobody can take 10 minutes out of their day and find out what’s wrong. Understand the status of the employee.

Equally though employees have to give a bit, participate, give the employer required feedback, many employee indicate its their right not to inform the employer what’s wrong with them. That its a matter of privacy, they worry what colleagues will think (I see this particularly around mental health issues) There’s that old saying “sometimes you have to give a little bit, to get allot”. Yes employees have rights, but avoiding that dismissal is important as well. It can be a fine balance regarding privacy issues.

Medical-certificate,-Dismissed-for-not-having-one
Medical-certificate,-Dismissed-for-not-having-one

If you get abused, you can lodge what’s referred to as a general protections F8C application. In turn the issues go before a member of the Fair work Commission to sort out in the first instance. If your terminated or sacked you can lodge a unlawful dismissal claim F8. or a unfair dismissal claim F2. Be there are strict timelines around lodgments. You welcome to call us and get advice on these processes. Being injured or illness is tough enough without the tactics and carrying on of the employer. Do not suffer in silence, you do have rights.

Conclusion

“what is considered sick leave abuse”, I hope you have found the article informative. We are A Whole New Approach, workplace representatives and advisors. We are at the cutting edge of commentary (look at the blogs, we have written). Fair work Commission decision analysis and debate. Any thing to do with the Fair work Australia, the workplace, we are here for you. Unfair dismissal, general protections, workplace investigations, workers rights, employment rights, probation issues. We work in all states, Victoria, NSW, QLD, SA, Tas, WA, NT

Call us for free, prompt, honest advice 1800 333 666

Sick leave, a workplace guide, click here

Medical certificate dismissed for not having one, click here

Working from home (on sick leave), click here

Extended absence from work, when can you be dismissed, click here

Toxic workplace

Toxic-workplace,-what-do-i-do?

Toxic workplace

What is toxic workplace culture

The way I put it is this, think of a tree in a toxic environment; the tree will fail to thrive, become wilted, and will ultimately die. That’s basically the metaphor for a toxic corporate culture. It prevents employees from thriving and while it (probably) won’t kill them literally, it won’t bring out their best and will eventually drive them to look for a job elsewhere. Toxic workplace culture on one level is institutional-centric; policies and procedures are designed with the company, not its workforce, in mind.

It means outdated work policies, for example a requirement to work from the office, that are mistakenly thought to squeeze the most productivity from an employee. It means benefits and perks that are easy on the company budget, but tough on employees’ lives. We see this in the pandemic, where real wages and hours are falling for employees, yet company proficts continue to increase, and high wealth company owners are worth more than ever before. It means regarding employees as objects that fulfill the company’s needs, not as people who have their own lives and families. 

A toxic work culture results in workplace “illnesses,” such as lack of cohesion among teams, increased absences and tardiness, lower productivity and high turnover. The illness once it establishes itself with the company is extraordinarily difficult to eradicate

Employee Categories

Employees fall into four groups who allow themselves to be subjected to this behaviour, because if you examine the list below you would think why in earth would anybody continue to work for organizations that have and engage in this type of behaviour, it makes no sense.

Groupings

First group are employees who feel / think they have no choice, I have bills, kids to put through school, pressure from the family, friends to stay for career purposes etc. That “things” somehow will get better

Second group, though the demeaning processes as described, the employee feels worthless, that they are not capable of getting another job. (how convenient is that for the current employer). They have been that appressed they cannot and will not pick themselves up.

Third group are employees who do not realize what’s happening to them, the culture they find themselves in, is the way companies conduct themselves. They do not realize its not normal, its not how best practice companies conduct themselves. That there is a better way. Examples of this, you joined the company after leaving school, university and that’s the way I just thought things were. The company makes a profit, so it must be ok. Some women who are subjected to domestic violence, unfortunately think that this behaviour is not that bad compared to their after work life.

Fourth group are the employees who like this behaviour, who appear to thrive on it. They are part of it, but once again usually think its normal, or suits their lifestyle away from a myriad of issues with their home life. They just want to get ahead and will “do what it takes”, and have an element of sociopathic behaviour in them. Surprisingly the percentage is higher than you think.

Signs of a toxic workplace and what the toxic culture looks like.

  1. Fear-based management, feel constantly securitized, micro managed
  2. Non producing and demoralized employees
  3. An atmosphere of gossip and rumors, back stabbing, dramas
  4. A lack of transparency from the management, don’t know what’s going on
  5. Stress and uncertainty about the future, an unstable work environment
  6. A sense of “it’s us against them” or “it’s everyone for themselves”
  7. Significant instances of absenteeism or employees calling in sick at the last moment
  8. Workaholic behavior, a fear of not working hard enough. and a lack of healthy work/life balance
  9. Unclear employer expectations across all levels of management
  10. Favoritism, wage gaps, or discriminatory policies. “your not part of the click”, or the gang
  11. You don’t have a list of core values, no mission or vision statement, lacking a sense of purpose.
  12. There’s the obsession gossip in the office, social media, groups on Facebook, etc being critical.
  13. Unfriendly employee competition, management play one employee against another.
  14. Employees are often tardy or absent, simply don’t care if they are on time, take long lunch breaks
  15. Employees often work late or don’t take lunches. However when you go home or have a lunch made to feel guilty
  16. Still hiring for culture fit, no diversity or new ideas or skills. (boss doesn’t want employees smarter than they are)
  17. No workplace giving initiatives, no visual reward, no appreciation
  18. Little or no promoting from within, no increased opportunity for additional training
  19. Public criticism of employees, verbally within meetings or when your not there.
  20. Obvious favoritism towards specific employees, boss’s favorites are obvious.
  21. A mindset that regards employees as the company’s property, rather than as contributors to the business
  22. An underlying belief that employees are inherently under-motivated or easily dispensed with
  23. A lack of accountability at the highest levels of the organization, management have “they are born to rule syndrome”

The list is not extensive but I think you get the idea.

I've-done-nothing-wrong.-I'm-facing- the-sack,-dismissal.-Do-I-resign-first
What do i do next?, you have 3 choices, read below
You-cannot-get-on-with-everybody.-I-have-to-cope,-i-need-to-pay-my-bills.
What one employee will put up with in a toxic workplace, another won’t, you have to decide what’s in your best interest.

Three Choices

I get many calls from employees, telling me me their story and particular situation, some events that’s occur in the workplace are horrific. I don’t mind hearing their stories, troubles, about the bullying the harassment, I add to the conversation and suggestions, etc. However I stop them there and say “are you going to do anything about this”, and the response in many instances is “oh no, I just need to tell someone”. I’ll respond somewhat harshly, “if you need a friend, buy a dog, if you need psychological assistance, that’s what your doctors for”. Nobody has to continue to suffer, be that tree in the nature strip starved of water, oxygen, fertilizer. Every night when you come home and see that tree, if looks sad, this doesn’t not have to be you. I tell anybody who listens you have three choices.

What Are They?

One; Leave, resign, this companies “BS”, its effecting me, you organize another job, and your out of there.

Two: You put up with it, as mentioned you might have financial commitments, career goals (finishing a apprenticeship, traineeship, gaining valuable experience.

Three: You do something about it, start pushing back, making suggestions, going to human resources, putting your concerns, your complaints in writing. Try and put a positive bias towards your comments, your actions. Lets be honest, no one likes a perceived whinger. Particularly organisations who have the culture mindset outlined above. If you have time research “Maslow’s hierarchy of needs“. How to change people, it can be done.

But what do I do if this doesn’t work?, or the organisations behaviour gets worst? Or what is more common, because you have excised your right to complain to the company, it has commenced adverse action again you, i.e. the employer wants to get rid of you, demote you, cut your pay. You do have the ability to lodge a claim with the Fair work Commission, referred to as a general protections application (F8C) or a anti bullying complaint (F72). Our general protections page has allot of details click here.

Conclusion

We have a great page up on how to cope with Toxic workplaces, it will improve your coping skills click here

I hope the blog toxic workplace was helpful to you, do not suffer in silence, allot of employees have the sense of “don’t make me go back to work there”. We we don’t have slavery in this country, you do not have to suffer this behaviour. I do understand people have bills, mortgages to pay, the key is to have a plan, were you want to be in 3 months, 6 months whatever, and work to that plan. We are A Whole New Approach P/L, for all Fair work Australia and Fair work Commission matters, bullying, harassment, being forced to resign, dismissals, probation, redundancy. Your welcome to give us a call, its free, confidential, prompt.

Call now, 1800 333 666, we work in all states, Victoria, NSW, QLD, SA, WA, TAS, NT

Looking to work out how much compensation your particular situation is worth,

Unfair dismissal click here,

General protections click here

Another article on toxic workplaces,. click here

Dismissal and the harmful effects, click here

Workplace whistleblowing, click here

click here

Diversity and Equity in the workplace

Diversity-and-Equity-in-the-workplace
Diversity has been spoken about considerably in recent times. Equity to some degree is in the eyes of the beholder. Lets read on, lets see how we may be able to inform you, help you

Diversity and Equity in the workplace

]What does diversity and Equity look like in the workplace

What does diversity and equity look like in the workplace, is a subject I haven’t seen much written about, so here goes. There are many examples of diversity (and lack of) in the workplace. We all become comfortable with our own groupings. (you see this with religious groups, same beliefs, same ideals) Variety in many cases can be in the eye of the beholder.

Definition of Variety

the quality or state of being different or diverse; the absence of uniformity or monotony. it’s the variety that makes my job so enjoyable

https://www.google.com/search?q=variety+meaning

It’s worth taking a moment and asking: what does diversity and equity mean to you in a particular workplace environment? The concern is people become comfortable, accept the status quo. Not everybody wants to get up in the morning and challenge themselves to do better, make the company, the world a better place. Now this is not being overly critical of people, its just the way it is.

People often fall into an unconscious habit of thinking of diversity and equity in only one or two dimensions. It can be race, age, gender, amongst others, and employees usually only see diversity though their own circumstances and views. Allot of employees see diversity and equity as tolerance of others. Employees think well I work with other races, genders, religions, so we are a inclusive group here. Diversity and equity is ensuring there is deliberate policy and culture of avoidance of the stereotyping of the groups of employees. A deliberate approach to employing people that are individuals outside of the “group” , but based on skills, experience, not because of the sole basis they are different.

Striving for diversity

But this can intended consequences, in striving for diversity in the workplace, you employ people form a particular nationality, and the experience works out well for the company, then they ask can their friend have a job, they’ve just arrived from overseas. You think why not, its work out well so far, its still diversity. But the concern is diversity is here, but no equity, the particular nationality speak in their native language, hence the exclusion to others, Is this fair?, there is not simple answer, the last thing you want to be seen is to be perceived as a racist.

general-protections-and-adverse-action
Everybody should be welcome, how do we get there?

Definition of diversity

he state of being diverse; variety. “there was considerable diversity in the style of the reports”

the practice or quality of including or involving people from a range of different social and ethnic backgrounds and of different genders, sexual orientations, etc. “equality and diversity should be supported for their own sake”

https://www.google.com/search?q=diversity&oq

Is Diversity Easy?

But depending on the situation, you can almost always find a way to increase the level of diversity in a group of employees, or a team, factory, office, whatever on a decision, in planning, or in a conversation, or in a change of policies, but it must not look like or suggest discrimination in itself. Or a action just to say we are politically correct, to satisfy others outside the company (shareholders, media, legal, etc).

Sharing-and-being-treated-equally
Diversity and equity in the workplace, faces many challenges

Here are a few examples: 

Diversity and Equity in the workplace can be in the delivery or development of a new product or service. 

The more employers are trying to serve and create value for a diverse set of customers and customer needs, the more they need multidimensional diversity in their teams. 

  • The first level of diversity (that we almost take for granted now) is cross-functional representation. If you look around and only see scientist you know that is a problem. 
  • The team is given the job of developing a product for a national market. It’s easy to look around and see whether a team is dominated by one gender or one race. Unless the product really only aspires to serve that homogenous market, that’s a problem. 
  • What about socio-economic status? In most professional situations, everyone has achieved a similar band of income and economic security that can lead to a loss of perspective on value, pricing, and relevance. How about educational background? Does everyone come from one or two schools? Has anyone worked their way up through a community college or other means? 
  • Do they share the same work experience? This is particularly an issue in large firms that have very structured career tracks.
  • Is everyone currently in the same city? Did they all grow up in similar environments despite coming from across the globe? 
  • to break down this grouping is extremely difficult, and can take years to achieve, but you have to start, cultural change is a challenge, we all know that, but the quicker its acknowledged, the quicker it can be dealt with.

Groupthink. 

First documented in 1971, groupthink is a phenomenon that occurs when individuals avoid disagreeing with a group or expressing doubt. The larger and more similar the group, the less likely individuals are to dissent. 

In this multi-faith commune, there is harmony in celebrating difference

Sunday Age, 19/12/2021

I think the headline in the age has some relevance, be proud of the difference, even if it comes pain and cost. The Australian way of putting “groupthink'”, is to refer to the group as “yes men”, there are numerous studies out, indicating the longer the CEO is in charge of a company, the higher the percentage employees around him or her that have like minded views. Why?

On one hand, individuals may feel such a strong group identification that it feels uncomfortable or threatening to disrupt the group consensus. Group norms and behaviors form and solidify quickly because they seem to share so much in common.  On the other hand, all of the individuals in the group might share such a similar set of experiences that they share the same blind spots and the same lack of awareness of their blind spots. 

Even groups with the best intentions can fall prey to groupthink. Irving Janis, the psychologist who first researched group decision-making, found that behavior such as bullying, rationalizing, and lapses in moral judgment were more likely under these circumstances. You compromise your principals, standards to fit in, not “rock the boat”.

Having a diverse team provides access to a wider range of skill sets and experiences and different ways of thinking, behaving and communicating. This facilitates the growth of new ideas and reduces groupthink.

Diversity-and-Equity-in-the-workplace
We all need to get along. The fear of dismissal because of who you are is a thing of the past.

Diversity and Equity in the workplace, how do we do this? Changing the culture of a workplace is challenging but rewarding work.

Many shy away from it because they don’t know where to start or aren’t sure that they’re doing it right. If an organization has previously tried — and failed — to implement a diversity initiative, they may decide that such initiatives don’t work or that the benefits are no longer worth the effort, and maintain the status quo, after all it has worked previously for a long time.

However, there won’t ever not be a demand for inclusive and diverse workplaces, 40 percent of all people in Australia are foreign born and will be entering the workforce in the future. Now is always a good time to start, but if previous efforts failed, the company needs to take a different approach. 

Here are eight ways to start reviewing, challenging — and shifting — your employer to a more inclusive environment, one to be proud of.

1. Recruitment processes

Ensure diversity and equity in your recruitment practices by making sure that you are looking at talent from all backgrounds. Don’t needlessly apply barriers to entry in the hiring process, like advanced degrees, expensive certifications, or experience with certain firms. poor English should not been seen as a barrier, wee have to knowledge 40% of all Australians are foreign born. The skills, training, experience that these migrants and refugees bring is fantastic and over the last 200 years its what Australia has been build on.

You have to insist that your Employer restate your companies commitment to inclusive recruitment, regardless of background and disability, in the job description. Make sure that when conducting interviews, you represent diversity amongst existing employees as well as in potential employees. There is a whole level of prejudice towards employees who have filed and or been on Workcover, that they are lazy, complainers or may just get injured again and be a liability to the company. We have to move away from this subconscious approach of “only fit, white, young males may apply”.

2. Employee groups

Your employees are whole people, and they bring their entire selves to work everyday. Its not uncommon to spend more time at work than with you own husband, wife or partner. It is hard to separate your work life, away from your home life, phones, laptops, social media going 24 hours a day doesn’t help, your expected to be accessible all the time. Providing spaces where employees can gather with other people of their background, ethnicity, and/or who share certain interests are a way to make sure that people feel included and represented at work. A prayer room, a area for women to breast feed, share their national food. These adjustment don’t really cost anything and it shows inclusiveness and respect.

3. Lead by Example

Leaders set the pace for their companies in more ways than one. Inclusive leadership groups make better decisions, and are a powerful reminder to the rest of the company of the values the organization embodies. Many people from under-represented backgrounds are concerned about their ability to progress in their career (that ever-present glass ceiling), so seeing someone they can relate to reassures them that the company is a place where they can thrive. There is a chance they can get ahead, not a felling of hopelessness.

4. Be upfront, honest in the approach 

Don’t try to build diversity on your own. Be transparent about your efforts and ask your teams for help. One person can’t see or fix everything by themselves. Consider implementing regular meetings and feedback devices where your team can report on what they see. What needs to be improved, and discuss in a neutral space any concerns they may have. Be sure you follow up by acknowledging their concerns and implementing meaningful changes.

5. Community Engagement (Both in and outside the Company)

Social justice issues are prevalent, and companies can’t be quite like they used to be, you see this with climate change. There’s possibly no faster way to lose the trust of your people than by putting out a statement that isn’t reflected in their day-to-day experience. Take an zero tolerance stance against racism, discrimination, sexism, prejudice, and harassment. These are human rights issues, not limited to special interest groups. (this special interest groups seems to have in through lobbying groups) Building an environment where people feel safe and valued means standing up for their rights. 

6. Be open, let it be seen

Diversity and groups means diversity of thought. Ask employees to contribute to the discussion, especially if they haven’t spoken up before. Remember, when a conversation becomes too homogeneous (in other words, when there is groupthink) it becomes harder for people to speak up with dissenting opinions. Play your own devil’s advocate and discuss the pros and cons of your own ideas. This will demonstrate that you are interested in the best idea, not just the most popular one. You are listening to all, with no fear as to who you are or background.

7. Do the research

Share the benefits of diversity with your fellow employees, share little stories, put the benefits forward, in a succinct way. Try and ensure where you can that it being evidence based. Looking at the positives is no bad thing, instead we are always, if we are not careful, of wanting to tear people, ideas down. Research continues to be done on the benefits of a diverse workplace. Across the board, employees are happier, healthier, stay longer, and produce more when they feel respected, valued, and included. Inclusivity builds trust within an organization.

8. Diversity and Equity Stories

Diversity and Equity in the workplace. I’ll tell a story (stories mentioned in 7) of my own, one Friday night (18 years ago) I was going out, of course I don’t drink drive, so I got an Taxi. I asked the driver to stop at a bottle shop, he wouldn’t, three times I asked, and he kept driving past bottle shops. It was obvious because of his religious beliefs. I was getting frustrated, I said to him, how many Christian friends do you have?, no answer. I said to him, ask me how many Muslim friends do I have, I said none. I said neither of us have crossed the divide. Telling this story to others in the work place over time, its shows the great divide, the lack of diversity in my friends. I took a conscious decision this is to never happen again.

We at A Whole New Approach have a very diversified work force. See, its not that hard, it fits in with the “a fair go mate”, that we as Australian’s are proud of. The taxi drive and I are still friends to this day.

Diversity-and-Equity-in-the-workplace.-We-are-all-equal
Be the one that’s different, be the stand out!

Conclusion: Diversity and Equity in the workplace

Diversity and equity in the workplace, isn’t just a conversation or whoever. Everyone has something that makes them different, its what’s makes us who we are and makes the world more interesting. Lets be honest it would be boring if we were all the same. The challenge for management is to play to employees strengths.

To get the best out of people, Employers should be doing this anyway, so its not like employers have to spend huge amounts of money introducing this change. Whether it’s a unique upbringing, educational background, way of thinking, or perspective on the world, whether its nature or nurture, we all bring our own strengths to the workplace. A diverse and inclusive employer is one that is on the forefront of innovation, social change, community and employee engagement.

I hope you enjoyed the article “Diversity and Equity in the workplace”. We are A Whole New Approach, leading workplace advisors. Acknowledged as leaders in Fair work Australia and Fair work Commission matters, including unfair dismissals, discrimination, sexual harassment. We constantly lodge general protections claims relating to matters of diversity. Casual employment rights, workers rights, bullied or harassment call us ASAP.

We contribute to the development of workplace diversity through assistance, advice, commentary, basically being vocal and standing up for employees. Have a concern, want to contribute to the debate, suggestions, give us a call. 1800 333 666 or email us at mediate@awna.com.au. Fair work Commission stop sexual harassment order, forced to resign due to sexual harassment. Find out “what is my case worth?” for unfair dismissal “how much is my case worth

Great article on diversity and rights that may be of interest for you, click here

Discrimination of the poor, click here

Unappreciated and poorly paid, click here

Toxic workplace, click here

Workplace harassment, click here

Workplace horror stories That’ll Make You “WTF”

Workplace-horror-stories-That'll-Make- You-"WTF"
Issues in the workplace are sometimes not straight forward, and sometimes bizarre. Some workplace require almost a special type of tolerance.

Workplace horror stories That’ll Make You “WTF”

Workplace Horror Stories That’ll Make You Say, “WTF”, what a great topic, lets you know what others are going through! These workplace enquires were made via the NBC web site. However at A Whole New Approach P/L we get similar statements as enquires relating to anything and everything. The enquires regarding COVID-19, and vaccinations frankly in many cases are bizarre. Having stated that, these are trying and unprecedented times.

Unfair dismissals, particularly in Victoria and NSW, are on the increase

Unfair dismissals, particularly in Victoria and NSW, are on the increase, certainly since the ending of the lockdowns were announced. Many employees are being dismissed in the probation period, before there was a higher level of tolerance by the employer, not any more in these challenging times. Then of course you have a large number of dismissals due to employees not being vaccinated. A new phenomena of employees who are working from home who now won’t go back to work in the office or factory.

Here are a selection of the most jaw-dropping enquiries :

“A colleague stole my spicy food, got sick, and is blaming me, I’m worried I will get the sack””

“Low performers in my office are parade around and forced to wear dunce caps.”

“Is the work atmosphere I’ve created on my team too exclusive?”

“I walked in on my employees having sex and now I think there’s an office sex club.”

“My coworker wants us to call her boyfriend her ‘master, and I will be dismissed if I don’t”

“I racked up $20,000 in personal debt on a company credit card.”

“Employee won’t come back unless her coworker is fired.”

“Employee got her colleague arrested for smoking pot at a conference and now wants a transfer.”

“My best employee quit on the spot because I wouldn’t let her go to her college graduation.”

“My manager shows up while I’m having chemotherapy to talk about work.”

“Our boss will fire us if we don’t sign up to be a liver donor for his brother.”

Workplace list continues

“My boss wants me to paint his house in the holidays”

“My supervisor stole a family heirloom from me and gave it as a gift to someone else.”

“I’m in trouble for what I wore when my boss made me pick him up from the airport in the middle of the night.”

“The coworker tickled another coworker, and now there is chaos”

“My anxiety is causing problems at work, I think I’m being stalked now.”

“The Employer made me leave a work noted at the grave of my bereaved coworker’s relative.”

“My coworker responds to everything I ask him to do with profanity and ‘your dad’ jokes.”

“I emailed my girlfriend’s boss to complain that he encroached on our relationship.”

“My employees refuse to call their coworker by her real name.”

“Employee drew genitalia on an trainees cast.”

“My boss enlists me in hiding his multiple affairs from his wife.”

“CEO’s wife ruined my job prospects.”

“I accidently insulted my boss’s daughter. “I have to look after my employer’s dog and cat while he is on holidays. Now I have to buy the food.”, “if I get terminated, can I get the dog food money back”

“I donated a kidney to my boss, I’m sick for a long time as a consequence and now he has sacked me for not turning up”

(this is not made up, google it).

ways-to-reduce-workplace-stress
Don’t get too stressed, develop strategies and coping skills, if it gets to the point of bullying, adverse action give us a call, explore your options

Life in the workplace can be difficult

Workplace horror stories That’ll Make You “WTF” indicates life in the workplace can be difficult for both the employee and the employer from time to time, human beings are social animals, we like to mix, usually in like minded groups, hence religions, sporting clubs, hobby groups, the list is endless.

Workplaces are different, in it throws, individual together in groups from various backgrounds, social originals, etc. And no not everybody gets on. It certainly requires a degree of flexibility and understanding towards each other, but how far to you go in putting up with weird, strange behaviors from co workers or your employer is the question.

Workplace social skills

People in many workplaces are recruited for their skill sets, their problem solving abilities, the ability to work hard. Not necessarily their social skills, yet workplaces demand we all put up with each other for up to 10 hours a day. We all have to learn coping skills, we don’t want to end up dismissed over some fool of a fellow employee. Not sure what to do?, how to react? Give us a call, 120,000 enquires to our web sites each month, thousands of phone calls we take, happy to help, we keep the conversations, real, we keep them honest, we keep them confidential.

Workplace-horror-stories-That'll-Make-You-"WTF"
We have to take care of each other, if i can help, call me

Conclusion to Workplace horror stories

Have a horror story, your welcome to send it though, it may assist other employees that they are not alone. suffering in silence is no good for anybody, speak up, call us, you have rights. We have noticed a trend on social media, where employees ventilate their frustrations about the workplace.

The concern with this approach is then there is permanent record for what you are commenting on about your employer and colleagues. An example can you go online and express your frustrations because your boss is a anti vacc’er. Tell the world how your stuck with looking after the employers dog, and its toileting habits in the office. Be careful what you go to print on, otherwise you may end up the people are saying “WTF” about.

An article to read on Pets in the workplace, (running over the bosses pet) click here

Workplace horror stories That’ll Make You “WTF”

I hope Workplace horror stories That’ll Make You “WTF”, held some interest for you. We are A Whole New Approach P/L, we are not lawyers but one of Australia’s leading workplace advisory and representative companies. Fair work Australia and Fair work Commission matters, including unfair dismissals, general protections, workplace investigations, forced to resign issues amongst the topics that we specialize in. If its in the workplace, we will help you. Advice is free, take advantage of this, give is a call, 1800 333 666 All states: NSW, Vic, Qld, Tas, SA, WA

Another article that may be of interest to you, on your rights, click here

“Employers playing god”, click here

Negotiating with your employer to get what you want, click here

Does your private life matter at work, click here

Dismissed if you don’t follow the employers directive click here

workplace-life-is-what-you-make-it
Workplace life, is what you make it
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