Employee Rights


Why Females in the Workplace Are Being Unappreciated and Poorly Paid.

Many politicians, journalists and commentators, claim that this is due to females tending to be in lower-paid careers. Of course, the pay equality complaint is that females are paid less than males for the same work, but the discussion should also include the fact that females do tend to be in lower paid careers and why. The truth is that “women’s” careers are paid less because it’s females who tend to do the work. Don’t believe me? Just look at the history.

Femininizing Fields

You might hear some people say that if females want to be paid more, they should work in higher-paying fields. This might seem like good advice, but the fact is that the more females who follow it, the less true it will become. This is because jobs are paid less as they gain popularity with females.

Look at recreation: As females began to outnumber men at gyms’, boot camps, as personal trainers and the like, jobs in that field saw a pay drop of 57% from the 1950s until today, even after adjusting for inflation. The same can be seen in more artistic careers as designers, artist, picture framers have seen their wages cut by 34% as the industry as seen more females employed. Biology, and Ecology used to be a highly-respected fields in science, but as more and more females became biologists and are employed, the wages fell by 18% and it’s now seen as a “soft” science, rather than the harder (more masculine) fields of physics and chemistry. Think of other fields, like psychology, teaching, disability care, etc. You can probably come up with dozens of careers and occupations that fit this pattern.

So, jobs are paid less when they become “feminized.” But the opposite is true when males start to take over a previously female-dominated field. A good example is computer programming. Most programmers and systems analysts were once females, and, at that time, the position was seen as menial. As males poured into the field, it began being paid substantially more. Not only that, it’s gained a lot of prestige; no one would say computer programmers have tedious, or menial jobs anymore.

Think that it just shows how priorities have changed over time? Consider doctors. While female doctors are paid less than their male counterparts in any specialty, we also see a massive pay gap between different kinds of specialists. Pediatricians, who are overwhelmingly women, are paid significantly less than most other specialties. There’s even a huge difference between cardiologists and pediatric cardiologists in terms of pay. We can also make comparisons between countries. In the United States, medicine has historically been a very male field and it’s highly paid. In Russia, medicine is a field dominated by women, and it is paid extremely poorly in relation to other professional field.

There is a argument and the evidence indicates that pay is largely determined by the gender build-up of the industry. Male-dominated fields pay, on average, 21% more than more “feminine” fields. It’s not that females choose lower-paying jobs; it’s that females work is paid less, no matter what that work entails.

Minimal Pay

So, what about males in female-dominated careers? Answer: they’re still paid more. Male nurses earn more than female RNs in every specialty. About three quarters of public school teachers are women, which might explain why the field is so poorly paid. Even so, male teachers earn 10%+ more than female teachers. Even the titles change for very similar jobs. Janitors, who are mostly males, earn more than housecleaners, who are generally females.

And then there’s the minimum wage. Nearly two-thirds of minimum wage earners are females. When the minimum wage was introduced in Australia, the idea was that a man working 40 hours each week should be able to support himself and his family at a decent level of living. Today, working full-time on the minimum wage can do no such thing. Back then, the intended beneficiaries were men (and their families). Today, the minimum wage goes mostly to females, and now the minimum wage no longer fulfills its intended purpose. Coincidence? I think not.

It’s Time to Start Appreciating Females and the Work They Do

The simple fact appears to be that typically “feminine” careers are paid less because it’s women who do the work. Regardless of what type of work it is or what skills are necessary, the more females are in a occupation / profession, the less it gets paid. On top of that, males in all fields, including “feminine” industries, are paid more than their female counterparts. This bias in favor of males trickles down to our very minimum wage, which has seen drastically reduced buying power as females began receiving most of those minimum payments. All of this indicates that it’s not women’s work that is undervalued; females themselves are undervalued.

Working women deserve equal recognition, respect, and pay for the work they do. It’s long overdue that females be valued and appreciated, for their contributions to society and otherwise. females still aren’t treated – or paid – equally, and it’s about time they were. If the job is important enough to exist, it’s important enough to pay it fairly, whether male or female do it. It’s time to start valuing females and the work they do.

This article is meant to provoke thought,

I’m not pro female or anti male, i’m pro everybody in the workplaces of Australia. There has to be more discussion in the current difficult economic times, particularly as we start to reemploy people as we come out of the recession. There is no easy answer to the conversation outlined above, history shows us, in recessions, pandemics, that’s it’s the less advantaged, the working class poor, part time workers that are impacted the most. It’s well advertised that partners in accounting and law firms are taking pay cuts on their $400,000 to $800,000 jobs, but there is no doubt they will survive, maybe their lifestyle will have to be adjusted. Workers in lower paid positions, (in many cases females) who are the household dominate income provider, will lose the car, house etc, this will then impact on the physiology of the next generation of children as it did in the great depression.

We are A Whole New Approach P/L, we are not lawyers, but leading workplace advisors for over 20 years, in sex discrimination, under the General protections , sexual harassment, adverse action claims for women. We are Australia wide, NSW, Qld, Vic, Tas, SA, WA, NT

Ramifications Of Considering If The Chief Health Officer Should Be Sacked

There has been incessant criticism and death threats targeted at the Queensland Chief Health Officer, Dr Jeannette Young, surrounding the rigid Queensland border closures. Calls for Dr Young to resign are resounding throughout the public arena. But who calls the shots? Can the Australian people force Dr Young to resign? Or is it best handled by the Queensland government? How does this apply to other workplaces today, should mob rule, or can public officers and managers at companies ignore the will of the public and the workforce. If Dr Young is sacked,. can she lodge an unfair dismissal claim?

How can we reconcile a lynch mob mentality with the need for procedural fairness?

Fundamentally, Australia is a representative democracy, which means that parliamentarians are representative of, and responsible to, the Australian people. It is from the people directly that governments, both State and Commonwealth, obtain their power. However, Dr Young is not a parliamentarian and nor is she elected. Dr Young is appointed by the Queensland public health service – which makes her just that, a public servant. Hence, it is argued that Dr Young should not be wielding such expansive power when she is not an elected representative of the people. She has not been chosen by the Queensland population to make her decisions, which are often controversial.

It seems that everyone has their two cents’ worth to add on how border closures and quarantine should be managed. But that’s just it – should popular conjecture influence the management of the COVID-19 crisis? Or should it be the carefully formulated by qualified health experts who have dedicated their professional lives to the field?

Despite only becoming recognized in households this year amidst the COVID-19 pandemic, Dr Young has filled her eminent position as Chief Health Officer for 15 years. The response to the COVID-19 crisis this year has been more widely promulgated by the media, as the COVID-19 pandemic is affecting all Australians each and every day. However, what is less acknowledged by Dr Young’s critics is her success in the role in combatting crises such as the Tropical Cyclones Larry and Yasi and the 2010-2011 floods. It is fair to say that Dr Young earned her position as Chief Health Officer, and until this year, no-one cast aspersions over her credibility or expertise.

No-one expected the outbreak of coronavirus. It could not be anticipated. There is no precedent on how to tackle this pandemic that has gripped the entire globe. As ordinary citizens, we hope that our governments are doing the very best in their power to fight this crisis for us. We place our faith in our elected representatives and appointed public service officials, who have nevertheless never seen a health crisis like this one, just like us.

In short, there is no perfect solution. Dr Young’s rigid border closures are unprecedented and have devastated many lives – but the closures have also prevented the devastation of many more, as Queensland is on track to eradicate the virus.

In times of crisis, everyone is tested – the government as much as the people and don’t forget the workers of this country. It is not unusual for frightened and frustrated individuals to search out someone to blame for all their grievances, and usually it is those in authority that are in the firing line, just as Dr Young is presently. Criticism will almost always flow from a crisis, which is entirely acceptable given our democratic freedom of speech. But what’s important to remember is that everyone is only human and no-one can see the future or foretell the best course of events.

The most appropriate way to tackle a crisis is largely speculative, many workplaces face the same scenario, although research and evidence can support a method of doing things, there is almost always a competing course of action. One need only compare the conflicting approaches to the coronavirus pandemic adopted by Sweden and Australia. At the beginning of the coronavirus pandemic, Sweden controversially refused to enforce a lockdown. Although there was a large spike in deaths initially, their daily recorded cases are now lower than Australia.

Queensland’s border closures are one approach, amongst a myriad of other courses of action that could have been taken. It certainly may not be the best approach, but how can we know what is?

The primary criticism of Dr Young is that she is dictating the policies and procedures of Queensland’s COVID-19 response, to the detriment of many, despite not being an elected representative of the people. Although this is true, Dr Young was appointed by the Queensland Government. As representatives of the people, we would expect that the Queensland Government would take appropriate action to rectify the situation and force Dr Young to resign if deemed necessary. It would fundamentally be in the best interests of the Queensland Government to act accordingly, or otherwise they may risk not being re-elected, as the power of the Queensland Government stems from the ballot alone.

This lynch mob mentality in calling for Dr Young’s resignation is not new. Many Victorians are echoing the same sentiment with regards to Premier Daniel Andrews. Furthermore, time and time again, we see the conduct of high profile CEOs denigrated by the media and the population, many of whom purport to be knowledgeable about matters they know nothing about. The mob mentality is quick to emerge once an error or inefficiency is identified during the tenure of an individual in power. In 2019, the CEO of Boeing, Dennis Muilenburg, resigned amidst criticism surrounding two plane crashes. Likewise, the CEOs of both McDonalds and Nike, Steve Easterbrook and Mike Parker were terminated from their positions in 2019 as a result of being embroiled in various corporate incidents.

Certainly, in such high profile roles, whether it be CEO or Chief Health Officer, there is no room for error. As Dr Young is in such an eminent position and should be responsible to the Australian people, her resignation may be appropriate. The people can urge her to do so, but it is important to remain civil and reasonable. Criticism is reasonable, but death threats certainly are not.

At the end of the day, this lynch mob mentality that has emerged must be reconciled with procedural fairness that only the Queensland Government can wield.

This applies to many workplaces, in the last few days the CEO of Rio Tinto resigned after public and shareholder pressure over the destroying Aboriginal artifacts. There’s always a balance between rights and needs of the employee, employer and other stakeholders, where that balance lies on the spectrum is always the controversial question that demands answers

Your Employment Rights With the COVID-19 Pandemic

Parts of Australia are current in a state of emergency and a state of disaster simultaneously amidst the global pandemic. With this, our rights and the laws we are governed and live under are changing on an extremely frequent basis. Both the state of emergency and state of disaster declared by our different levels of government has a significant effect on our rights, and it is extremely hard to keep up with the overload of information and constantly changing status of the law. So, with this article, we seek to clarify the standing of your employment rights.

Arguably the most common area of advice that is requested from our associates are surrounding redundancies, and whether they are genuine or whether they have been unfairly dismissed.

The high complexity of our industrial relations system prevents a ‘one size fits all’ answer. So, with regard to a redundancy, the first logical question to ask is whether the business or industry your employer is in has been detrimentally affected by COVID-19. If the workflow or stream of revenue has been substantially reduced due to COVID-19, your employer may have a rational reason to have made you redundant as it was a practical business decision.

However, not all hope is lost. Despite the real possibility of downturn in business, do you feel as if there was an ulterior motive in making you redundant over someone else?

Are you of the belief that you were more qualified or experienced than the employee who was not dismissed? Being or having been pregnant, being or having been on workers’ compensation or even having made honest complaints in the workplace, could be grounds for you to argue that your redundancy was actually not genuine.
At A Whole New Approach, we utilize our vast experience, knowledge and our strong logic and common sense to tackle the very real employment issues of today. There were many issues in the work sector where employees wished to protect themselves by wearing protective gear like masks but were prevented from doing so by their employer and sometimes even unfairly dismissed for it. As aforementioned, there is no straight answer to these employment issues, so make sure to contact us immediately to see if there is anything you can do to protect your employment rights amidst the global pandemic.

Forced To Leave My Job

Under the Fair Work Act 2009 (Cth) (the FW ACT), the term dismissed is defined where a person’s employment has been terminated at the employer’s initiative or a person was forced to resign because of the conduct or course of conduct engaged in by the employer. A forced resignation, also referred to as constructive termination or dismissal, is when an employee has no real choice but to resign, and thus, the onus is on the employee to prove that their resignation was not voluntary and that they were forced to leave. This issue may form the basis of a jurisdictional issue when dealing with claims such as Unfair Dismissal applications in the Fair Work Commission.

Have you been forced to leave?

In establishing whether an employee has been forced to leave their employer, the employee must demonstrate that the employer has taken action with the intent to bring the relationship to an end or that has that probable result. In the words of the full bench in O’Meara v Stanley Works Pty Ltd, adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli, the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to leave.

Similarly, the Australian case of Mohazb v Dick Smith Electronics Pty Ltd (No 2), states that “An important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship”. For example, an employee leaving after having been paid under half of what he was owed in wages over a period of 4 months. This was held to be a termination by the employer as their conduct forced the employee to leave. Similarly, if an employee is complaining about something within their right, such as sexual harassment they are suffering, and the Company continually fails to take action, the employee may feel forced to leave as they can no longer bear to work.

If an employee feels forced to leave in the heat of the moment or under extreme pressure, special circumstances may arise.

What can I do if I feel I have been forced to leave?

In order to qualify for unfair dismissal, the employee must have completed at least the minimum employment period with the employer. The minimum employment period is 6 months continuous service at a particular time, for non-small business employers. If the employer is a small business, which employs less than 15 employees at the relevant time, the employee must have completed at least 12 months of continuous service at the particular time. A general protections claim can be made if the employee feels forced to leave after they have exercised a workplace right and made a complaint in regards to their employment and because of this complaint, the employer has acted adversely towards the employee by engaging in conduct that has forced the employee to leave. An Unfair Dismissal application or a General Protections Application must be lodged with the Commission within 21 days of the termination taking effect.

Unfair Dismissal and Being Forced to Leave

If an employee is forced to leave, the employer may object to this unfair dismissal application on the basis that the employee effectively resigned, and thus there is a jurisdictional issue.
If the employer objects on the basis of a jurisdictional issue, a jurisdictional hearing can occur before or after conciliation. A jurisdictional hearing is a formal process by which a member of the Commission will make a decision as to whether the Commission can deal with the unfair dismissal case. This process involves the parties to the matter making submissions, giving sworn evidence, and provides an opportunity to challenge or cross-examine the other party’s evidence. The jurisdictional hearing will assess whether the employee has been forced to leave or resign and thus they have been constructively terminated, in order to qualify for an unfair dismissal application.

General Protections and Being Forced to Leave

Compensation and remedies

For an unfair dismissal claim, compensation may be awarded to an employee if the Fair Work Commission is satisfied that reinstatement is inappropriate. Compensation in this form is designed to compensate unfairly terminated employees in lieu of reinstatement for losses reasonably attributable to the unfair termination. As a result, compensation cannot be awarded for shock, distress, or humiliation.

When determining the amount of compensation that may be awarded

For a general protection claim, the Fair Work Commission may order the employee to be reinstated, make orders relating to continuity or lost remuneration and compensation. In regards to compensation, this can include non-economic loss such as hurt, humiliation, and distress where there is a causal connection between the contravention and the loss. Compensation in this form is referred to as general damages.

Bullying And Working From Home

work from home

Under the Fair Work Act 2009 (Cth) (the FW ACT), Workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers of which the worker is a member, at work and that behavior creates a risk to health and safety. Depending on the circumstances, employees’ may be eligible to lodge an application for an order to stop Workplace Bullying (Form F72), a General Protections Application not involving dismissal (Form F8C)or a General Protections Application involving dismissal (Form F8). In order to determine which application is best for your unique circumstances, please give us a call on 1800 333 666 for free advice, guidance and possible representation for these disputes.

Am I being bullied at work?

Aforementioned, workplace bullying occurs when an individual or a group of individuals repeatedly behaves unreasonably towards a worker, or a group of workers of which the worker is a member, at work and that behaviour creates a risk to health and safety.

In Amie Mac v Bank of Queensland Limited and Others, the Fair Work Commission indicated that some of the features which might be expected to be found in a course of repeated unreasonable behaviour constituting bullying at work were “intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging-up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim-blaming and discrimination”. In regards to establishing a risk to health and safety for the test of workplace bullying, proof of actual harm to health and safety is not necessary provided that a risk to health and safety created by bullying behaviour is demonstrated. Thus, the bullying behaviour must create the risk to health and safety through a casual link.

Working from Home

Due to the COVID-19 global pandemic, many employees have been required to work from home and thus this raises many issues in regards to whether an employer’s actions will constitute workplace bullying. In order to constitute workplace bullying, the bullying conduct must have occured while the worker is “at work”. Although “at work” is not defined clearly in the legislation, it has been held that the definition includes work activities wherever they may occur and is not limited to the confines of a physical workplace. Despite not being physically present at work, it has been held in Bowker and Others v DP World Melbourne Limited T/A DP World and Others, that bullying through social media platforms can constitute workplace bullying, despite the conduct not occurring “at work”.

Employer’s have been forced to utilize social media platforms, such as Zoom, in order to conduct interviews, meetings and general communication with their employees. Just because an employee is working from home, does not mean an employer can intimidate, victimize, single-out, yell or belittle their employees. Similarly, just because employees are working from home, does not mean that employer’s can have unreasonable expectations in regards to workload or give unreasonable directions. The employees should still be required to complete the amount of work they would have had they physically gone into work, they should still be entitled to the same breaks and they should only be contacted during work hours. Working from home does not mean an employer can abuse the employee’s freedom by making them work until late at night or contacting them constantly in order to make sure they are being productive. In return, employees should not be abusing this freedom by not meeting daily targets or completing their allocated tasks. Many employees believe if they work from home, they can procrastinate or get away with not doing as much work as if they had physically gone into the office because they are in the comfort of their own home. If employees wish to be treated with respect, they must also respect their employer and their directions, if they are reasonable.

Another important issue during this time is related to employees with young children they are required to homeschool due to the pandemic. As many Australian states have adopted remote learning for primary and secondary students, many parents have an obligation to homeschool their children. Although older children are more disciplined and can complete the remote learning tasks themselves, younger children, such as primary school children, require assistance and guidance from their parents, who are also working from home. This can pose an issue for employers as it becomes difficult for employees to juggle homeschooling and completing their own workplace tasks for their employer. Nevertheless, both employers and employees will need to communicate and be understanding during difficult times but employees need to understand when their employer’s conduct or directions are unreasonable and thus constitutes workplace bullying. In order to discuss whether you are being bullied at work or whether your employer’s directions are unreasonable, please give us a free call on1800 333 666 .

Casuals and the Workplace

Alongside the recent and changing circumstances of the coronavirus pandemic, an issue that has arose is the increasing rate of casualization in the workplace. In a recent interview with the ACTU secretary Sally McManus, she expresses her concern with the increasing rate of casuals at 25 percent in the past 20 years, as it has caused insecurity within the Australian workforce1.

During this time of much uncertainty, Australian employees are left to feel displaced and neglected by their employers. However, what is even more concerning is the Government contracting out essential services and the impact this is having upon Australians. Where these untrained security contractors have acted so recklessly that they are reason to cause Victoria back into a six-week lockdown.

What is casualization?

Casualisation describes the transformation of a workforce from permanent contracts to employment engagement on a short-term or casual basis. Quite interestingly, in Australia 35% of its workers are either casual employees or contractors2

The Fair Work Commission lists that these casual employees:

  • Have no guaranteed hours of work
  • Usually works irregular hours
  • Doesn’t get paid sick or annual leave
  • Can end employment without notice, unless notice is required by a registered agreement, award or employment contract3

Casualization in the Australian workforce and impact on employees

Quite often, we hear casual employees not being able to make plans to spend time with their friends and family, as they do not want to promise their loved ones they’ll be able to come with their uncertain rostered hours. Or having difficulties to secure a car loan or deposit because of this insecure form of employment. However, more seriously casual employees often find themselves too scared to exercise workplace rights in fear their employer may take adverse action against them. This can include inquiring about their pay or workplace entitlements, in fear that they may be terminated or have their hours reduced. Therefore, these insecure workers are left with no incentive and are far less confident, as they cannot rely on the benefits that unions have fought for workers.

Many ask why the Australian workforce has taken this shift towards casualization if they lack these entitlements of full-time or part-time employees. Casual employment is used as a means by employers to minimize costs as they can avoid having to pay entitlements such as notice of termination and leave. As well as employers being able to adjust the hours of casual employees to suit the business, without needing to provide much notice. Where casual employees can be left off the rosters with no means of income for weeks, even months if the employer decides so. Thus, leaving many casual employees in positions they may be forced to resign as they are not receiving any hours, and are unable to support themselves or their family.

Additionally, if a casual employee has been unfairly dismissed they may have problems going to the Fair Work Commission to seek remedy unless they can demonstrate they were employed on a regular and systematic basis.

How does a casual employee differ from contractors?

Quite often, business owners and employees become confused with the difference between a casual employee or a contractor. In order to draw this distinction, an examination of the relationship between the individual and the employer must be analysed.

A contractor is an individual or business that a commercial enterprise hires to perform a specific function. As of such, the key distinction between these two forms of employment include:

  • Hours of Work

Contractors are able to determine what hours they work to complete the task they were hired for, unless their agreement states otherwise. Meanwhile, casual employees are often rostered on to work specific hours, as decided by their employer.

  • Control and Autonomy at Work

Contractors are not specifically bound by the business that hired them to perform the duty. Meanwhile, casual employees are bound to work beneath the instructions and expectations of their employer. Thus, not having as much autonomy and freedom within their work.

  • Liability and Risk

Contractors when on a job are responsible for any liabilities or defects. To which they often are required to have their own independent insurance as a means of protection. Meanwhile, casual employees do not have this liability and in most circumstances the corporation will be liable for the conduct of its employees.  

  • Payment

Contractors are paid for completing the work that they have completed on duty and quoted the body that hired them. To which, such payment is often done through an invoice and after the job has been completed. Meanwhile, casual employees will receive payment routinely with payroll either weekly, fortnightly or monthly.

  • Tax

Contractors must pay GST and tax payments to the ATO, meanwhile causal employees usually do not as they have their tax deducted by their employer.

  • Superannuation

Contractors are responsible for managing their own superannuation payments, meanwhile causal employees have their payments made by their employer into their nominated superannuation fund.

  • Equipment

Contractors are responsible for supplying and bringing their own equipment to complete the job they were hired for. Meanwhile, causal employees are usually provided the equipment by their employer at the place of business.

Despite these differences, one thing that contractors and casual employees have in common are the lack of security and entitlements within their employment. Similarly, beneath the Fair Work Act 2009, independent contractors are protected from adverse action, coercion and abuses of freedom of association. If a contractor is in a position where adverse action has been taken against a contractor exercising one of these protections, they may be able to make a General Protections Claim to the Fair Work Commission.

Victorian Hotel Quarantine Case Study

In recent developments of the Coronavirus pandemic, specifically in Victoria, the backlash of using independent contractors to enforce quarantine of overseas traveller has begun to transpire.

Back in March, the Victorian Government decided to put the responsibility of enforcing the mandatory 14-day quarantine of overseas travellers in the hands of independent security contractors. The same security contractors that work amongst the nightlife industry, providing their services to nightclubs and bars. Where there is a known history of ill practice and corruption amongst this industry. In fact, the Fair Work Ombudsmen recently released that this private security industry had far higher levels of workplace disputes, mostly arising from contractors being used to lower the cost of paying employees lawfully.

Not even two months after this decision, the first infection of a security contractor became public to which lead to an outbreak of the virus in Victoria. Where currently the state is again in a stage three lockdown for six weeks. Where family and friends are unable to attend funerals and weddings for their loved ones. Where children are unable to attend school and be educated, even those doing their VCE for tertiary education. Where businesses are being forced to shut down and terminate employees who must provide for their families. Leaving not only Australians, but other countries to ask what possibly could have gone wrong.

The contracting out of this essential service left these questionable individuals in charge of such a vital role in flattening the curve, without the required training to do so. From breaking up fights at clubs and checking ID’s, these contractors were placed in quarantine hotels with as little as a few minutes of training. Where stories are beginning to surface of contractors not correctly wearing personal protective equipment, disposing of waste correctly and engaging in other unhygienic practices. Even worse, these contractors were sleeping with infected guests and afterwards going to other contracting jobs, such as Uber instead of self-isolating to prevent the spread of the virus.

Perhaps if those hard-working employees with the relevant training and knowledge were hired instead by the Victorian Government, the state would not be in another lockdown.


The casualization of the Australian workforce and the contracting of essential services is damaging the morale and confidence of our Australian employees. Our workers deserve to have security at work, where they are protected to exercise their workplace rights and have notice and leave entitlements. Where these casual employees who arrive at their job and work hard, despite not being afforded security and entitlements should be recognized.

We must start the discussion to help fight for security and fairness in our Australian economy, and keeping our jobs protected. If we don’t act now, it may be too late. Where if it isn’t you that’s affected, it may be your daughter or son who suffers. Together, we can restore justice in our workforce.

General Protections / Excising Your Rights

There’s allot of current Commentary Regarding Retired High Court Justice Dyson Heydon, a brilliant jurist, who seems not to be able to keep his hands away from the female associates. What we are currently observing is an increasing percentage of General Prorection applications (F8 & F8C) involve sexual harassment in the workplace.

When the Fair work Act was enacted in July 2009, General Protections applications were predominately about about discrimination/ illness/ injury type issues. Over the ensuring 11 years the claims have moved more to the “excising of workplace rights” a more all embracing approach to disputes in the workplace . Then in the last 4 years, we have found 20-30% of all claims involve some level of sexual harassment and related issues.

The advantage being that General Protections Application Not Involving Dismissal (F8C) the application will be processed and allocated to a Member (equivalent of a judge) of the Fair work Commission immediately and conferences are then convened within 2-3 weeks. Whereby claims lodged with the various Human Rights and Equal Opportunity commissions around the country can vary between 3 to 6 mths. Expediency is important, particularly if the employee is still turning up to work everyday, absolutely stressed out or waiting at home for something to be sorted out before going back to work. Many employees run out of sick pay and holiday pay while waiting for their claims to be processed or resolved. This is not the Human Rights or EO Commission’s fault, claims have to be investigated, plus they have limited resources. The various Federal and State government’s tell the world about how they champion employees rights, yet cut the Commissions budgets. The Fair work Commission have a more direct approach, list the Application immediately, get the matter to a conference ASAP, then go from there. There are pluses and minuses in both approaches, every claim and employees circumstances are different.

Get Advice on the best way to proceed, with a General Protections Application, you don’t have to wait 7-10 years as with the High Court, to lodge a claim, you have the right to bring employers, and individuals to account now.

Lodging a General Protection or Unfair dismissal Claim With the Fair work Commission

unfair dismissal claim

It is not uncommon for an employee to go to the Fair Work Commission website for forms and assistance when they have been dismissed. This is an obvious place to start and has a wealth of information on it’s site for both employees and employers. Fair Work Commission is a government body that was established to be responsible for administering the provisions of the Fair Work Act. They have many powers and deal with just some of:

  • unfair dismissal claims
  • anti-bullying claims
  • general protections claims
  • unlawful termination claims
  • disputes of modern awards and enterprise agreements
  • setting the national minimum wage and minimum wages in modern awards
  • modern awards – making, reviewing, varying

Earlier this morning in researching Fair Work Commission decisions for a arbitration we are preparing for, I thought out of interest I would look at the bench-books for unfair dismissal and general protections. Many people find the difference between the two confusing. I use bench-books for research as they are useful guidelines of how the claims are lodged and proceed.
They are incredibly thorough, and detailed. Which gives me all the information needed to know the best way forth to proceed with a general protections or unfair dismissal claim.
Then it occurred to me.

The Unfair Dismissal Bench-book is 244 pages long.
The General Protections Bench-book is 192 pages long.
Want to lodge a anti bullying Complaint? the Bench-book is 149 pages long.
Up to 585 pages of reading, with a strictly enforced 21 days to lodge a unfair dismissal or general protections claim. Most books or PHD dissertations aren’t that long.
Combine this with the stress of losing your job, pressing financial worries, and looking for a new job, its a difficult mine field.

The Fair work Commission is there to help you, they are totally professional and very good at what they do. The Fair Work commission are being balanced between Employee and Employer, that’s the system, it has been that way for 100 years. But your claim is about you, no one else, get advice from outside parties, Unfair Dismissals Australia amongst others have this free service. Your goal is to protect your job, reputation, family and career, not just your ability to read 400 plus pages and make sense of it. Contact us for a free consultation.

Replaced By A Cheaper Worker

replaced by a cheaper worker

The current economic environment has put employers are under pressure to reduce their workforce for reasons such as reducing their cost base. Higher paid employees, especially those with a shorter service with the company are being replaced by cheaper workers. There is much lower cost to the employer for making an employee redundant who has been in employment for a shorter time. As there is 21 days for an employee to make a claim via unfair dismissal or general protections, many employers just wait the time out before advertising the role at a reduced salary.

This was highlighted recently in the Fair Work Commission decision by Deputy President Mansini (5th June 2020) Toni Perret v Ayers Real Estate U2020/6336 when the employee only after the 21 day time to lodge a claim had expired sited their position on “seek.com.au” and “indeed.com”. It appeared the only change was the title of the position had changed and it was indicated the “new” position will be at a reduced salary.

The Deputy President clearly could see what was going on here, indicated that it met the “exceptional circumstances” test and has allowed the unfair dismissal claim to proceed although out of time.

Being replaced by a cheaper worker is not the only discrimination to be found. If your replacement is younger, there is a chance you could claim age discrimination. This can be tough but sometimes it’s too obvious to ignore – especially if the younger person is also cheaper.

I saw this behaviour at the end of the mining boom, where many miners were on extraordinary wages, and mining companies were on a mission to average their payroll down. Usually, as an employee left or was dismissed they would be replaced by a cheaper worker. This time around with the worst economic conditions in anybody’s lifetime, many companies will not wait.

Have a question, think something underhanded going on, or just want to chat, give me a call

Black Lives Matter

We at A Whole New Approach support the movement to reduce violence and loss of indigenous lives in police custody and the community. Time and time again though employees unfair dismissals, terminations, forced resignations and discrimination I see the impact it has on indigenous people. Many people give up after the loss of a job, lose face, feel worthless, the system has let me down again. A job can give people respect, purpose, money, the ability to reduce the reliance on welfare and provide for their community. Take this away and many people will struggle.

We have to better / more than just march, its a start, it raises attention to the deaths in custody issue, This issue has been around along time, no progress has been made, we must make progress. How do we keep people out of custody to begin with? Better education, can lead to better job outcomes, and in turn longer term careers. Many indigenous people have very successful careers, but more is needed to break the chain and cycle of police and community issues that lead back to being in custody.

Between the COVID 19 and the dramatic down turn in the economy, it had made a lot of people scared of what the future holds. Mental health issues and domestic violence are increasing, thousands are being made redundant or being dismissed, in many cases unfairly. We all have to pull together, take care of each other as part of the community. Maintain purpose and a great purpose is to eradicate deaths in custody. Keep the spot light on the issue. Don’t confront the police, but pressure politicians for better training of police, better selection of police, more indigenous police. Instead of wanting to tare down the police department, make it better. Police are part of the community as well.

The web site deals with mainly workplace matters, including unfair dismissals, general protections claims and workplace investigations. If you feel you are appressed, discriminated against, bullied, we can look at taking your matter to the Fair work Commission or an human rights or equal opportunity commission. If you raised your complaints, expressed an opinion in a reasonable way and feel mistreated for it, give us a call and discuss it, it cost you nothing. 1800 333 666

We have to stand up for each other

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