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This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
Sometimes an employment situation is so problematic that a worker feels that they have no choice but to leave their job. In rare cases, this kind of situation may be treated as a dismissal (‘constructive dismissal’), which then allows the worker to seek legal remedies under unfair dismissal laws.
Note: Constructive dismissals are very context-specific and determined on a case-by-case basis. It is important to get legal advice before going ahead with a dismissal claim in the Fair Work Commission.
What is a constructive dismissal?
‘Constructive dismissal’ is sometimes referred to as a forced resignation. The Fair Work Act 2009 states that a person may be seen as dismissed if the person was forced to resign because of their employer’s conduct.[1] However, it is the worker’s responsibility to show that the employer’s conduct forced them to resign. [2]
In limited circumstances, constructive dismissals may include ‘heat of the moment’ resignations where words are said ‘in temper or in the heat of the moment or under extreme pressure’.[3]
If you resign in the heat of the moment, and you regret that decision, you should urgently attempt to withdraw the resignation as soon as possible.
Example #1: Employer pressures worker to resign
Yuna has been working as a full-time administration officer at a university for the last three years. Two months ago, Yuna learned that she is pregnant and notified her employer. Since then, Yuna has observed that she is being treated differently by her boss and coworkers – she is being overloaded with work and unreasonable deadlines.
One afternoon in a staff meeting, Yuna’s boss singled her out for not finishing a report that she was only told about that morning. Yuna felt humiliated and was in tears after the meeting, and she took personal leave for the rest of the week.
When Yuna returned to work the following week, her boss called her into a meeting and scolded her for her ‘unacceptable behaviour’ at last week’s staff meeting. Her boss then handed her a ‘Separation Agreement’ for her to sign, and said, ‘I think you know what needs to be done’. Yuna quickly skimmed the document and asked to go home. Her boss did not allow her to leave until she signed the document, so she did.
The next morning, Yuna received an email from her boss stating that they accepted her resignation. Yuna was confused and immediately replied, ‘I never resigned. I think there’s been a misunderstanding and we need to talk’.
In the above example, it is arguable that Yuna’s employer constructively dismissed her based on the following:
Example #2: Dismissal by non-redundancy, not a resignation
Goli has been employed by Cleaning Company as a part-time cleaner for seven years. Goli’s employment contract specifies her hours as Saturdays and Sundays between 7-10am and her location of work as Gawler. For the last five years, Goli has been cleaning the local library’s offices.
Cleaning Company’s contract with the library finished, so they offered Goli a new site in Port Adelaide on Saturdays and Sundays from 5-7am. Goli told her boss that she could not accept these shifts as her commute from home would be 90 minutes longer.
Cleaning Company replied stating they understand Goli’s concerns about the commute and respect her decision to reject the role. They also requested a formal resignation letter.
Goli is confused because she was not planning on resigning.
In the above example, it is arguable that Goli was constructively dismissed because her employer has significantly changed her job, in a way that is not allowed by her employment contract. Goli could argue that she was unfairly dismissed and that the dismissal was not a genuine redundancy. It may not be a genuine redundancy because, although Goli’s previous position is no longer available, her employer did not consult with her around the change.
Example #3: Resignation not in the heat of the moment
Nikola is a full-time bar manager at a wine bar in Port Lincoln. Over the last 3 months during the busy summer season, Nikola’s relationship with her employer, Martin, has broken down as the business has been short staffed and the bar has been busy most nights. Nikola feels is feeling overworked and undervalued.
After a particularly rough shift involving a rowdy hen’s party, Martin tells Nikola he overheard a customer say that she took too long to serve them. Nikola was irritated and replied, ‘Serving people and making drinks aren’t even in my job description, and I still did it. I’m sick of doing everything and still being taken for granted. I’m done here, consider this my notice.’
Nikola went home and was hoping Martin would call to apologise for being inconsiderate. When Nikola didn’t hear from Martin the next day, she began to regret her decision. The next morning, she contacted Martin to withdraw her resignation.
In the above example, it is unlikely that Nikola was constructively dismissed because she did not withdraw her resignation until two days after the incident. If Nikola had withdrawn her resignation sooner (for example, the same day as resigning in the heat of the moment) or said something more uncertain like, ‘I’m done here, consider this my notice unless I feel differently tomorrow’, then she is in a better position not argue that her resignation should not have been accepted.
Contact the Working Women’s Centre SA on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
[1] Fair Work Act 2009 (Cth) s 386(1)(b).
[2] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
[3] Ngo v Link Printing Pty Ltd (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12] citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, 191 (Wood J).
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
Restraint of trade clauses (restraints) are terms in an employment contract between an employer and employee that try to restrict a worker’s conduct, especially once the worker stops working for the employer.
Restraints can be divided into three categories:
The purpose of restraints is to protect the employer’s business interests. However, they can be problematic for workers trying to find a new job. At the Working Women’s Centre SA we see restraint clauses increasingly being included in employment contracts as standard contract terms. Restraint clauses should not be used as a standard term in all contracts, and only in specific circumstances. This factsheet provides a summary of the current legal approach towards restraints so workers can understand the meaning and effects of agreeing to them.
General rules regarding restraints
The 2013 Victorian Supreme Court case of Wallis Nominees (Computing) Pty Ltd v Pickett [1] summarises the rules courts apply when deciding if restraints are valid and can be enforced. This is summarised as follows:[2]
Example of Restraint Terms in an Employment Contract
Yohanna is a qualified hairdresser with 5 years of experience. She took a 2-year break after giving birth to twins and is keen to get back into the workforce. One day, she sees that a salon in the Adelaide CBD, Sissy Scissorhands (Sissy’s), is hiring. After two rounds of interviews, Yohanna wins the position and is offered an employment contract which includes the following terms:
12 Restraints
12.1 Non-solicitation
During the Employee’s employment with the Employer and for each Non-Solicitation Period (refer to Clause 13) thereafter, the Employee must not, without the Employer’s prior written consent, directly or indirectly, within each Non-Solicitation Area (refer to Clause 13), interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Employer and any of the Employer’s customers, clients, suppliers, distributors or joint venture partners, or identified prospective customers, clients, suppliers, distributors or joint venture partners, including any such customers, clients, suppliers, distributors or joint venture partners to whom the Employee was introduced, or in respect of whom the Employee carried out any work, during the course of her employment with the Employer.
12.2 Non-competition
During the Employee’s employment with the Employer and for each Non-Compete Period (refer to Clause 13) thereafter, the Employee must not, without the Employer’s prior written consent, directly or indirectly, within each Non-Compete Area (refer to Clause 13), and whether alone or jointly with or on behalf of anybody else, including:
(a) in partnership or in association with any other person;
(b) as an agent, representative, director, officer or employee of any other person;
(c) as a member of, or holder of any shares or other securities in or from, any other person; or
(d) as a trustee of, or consultant or adviser to, any other person,
carry on, operate or be engaged, interested or employed in any other business or endeavour that is the same as, is materially similar to, or competes with, the Business or any part of the Business in which the Employee was involved during her employment with the Employer.
13 Restraint details
For the purposes of Clause 12—
13.1 Non-Solicitation and Non-Compete Periods mean:
(a) 12 months; or
(b) 6 months; or
(c) 3 months.
13.2 Non-Solicitation and Non-Compete Areas means:
(a) Within 50 kilometres of the Business; or
(b) Within 40 kilometres of the Business; or
(c) Within 30 kilometres of the Business; or
(d) Within 20 kilometres of the Business; or
(e) Within 10 kilometres of the Business; or
(f) Within 5 kilometres of the Business.
Yohanna is unsure what these terms mean, but she is desperate for work and accepts. After 6 months at Sissy’s, she realises that she would prefer to work somewhere closer to her home in Elizabeth. Yohanna remembers the restraints in her contract and is not sure what she can do moving forward.
Based on the rules outlined in Wallis Nominees above, the starting position is that the restraints in Yohanna’s contract are unlawful. However, if Sissy’s want to enforce the restraints, they will need to show that the restraints are reasonable and necessary to protect their business interests. Sissy’s need to show that the Non-Solicitation and Non-Compete Periods and the Non-Solicitation and Non-Compete Areas do not reach beyond what is necessary and reasonable to protect their business interests.
In practical terms, Sissy’s need to show that the time periods and geographical areas in Clause 13 are reasonable restrictions to protect their business interests. This is why the clause has multiple time periods and geographical areas – if the broadest scope (ie 12 months within a 50km radius) is unreasonable, then a Court will need to decide if an alternative option under the clause (ie 6 months within a 30km radius) is reasonable and valid.
Ultimately, it is up to Sissy’s to enforce the restraints if they want to. Because Yohanna signed the contract, there is a risk that if she resigns and tries to work as a hairdresser in the next 12 months within 50km of Sissy’s, that Sissy’s will start a legal claim against her to enforce the restraints. Even if all the restraints are decided as unlawful, Yohanna will still have to go through the legal proceedings, which can be costly and time-consuming.
This is why it is important to get legal advice about what contract terms mean before signing the contract.
Contact the Working Women’s Centre SA on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
[1] (2013) 45 VR 657.
[2] Wallis Nominees (Computing) Pty Ltd v Pickett (2013) 45 VR 657, (Warren CJ, Davies AJA) at [14] citing the judge at first instance.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
A fixed term contract (FTC) is an employment agreement that specifies an end date to the period of employment. This contrasts with an ongoing or permanent contract with no end date. FTCs can be useful, particularly for employers, to address temporary staffing shortages and/or ad-hoc business needs – eg seasonal work, parental leave covers, project work. However, FTCs can also be misused and harm workers, especially when they are repeatedly renewed to keep a worker in limbo without the protections of permanent, stable work.
This is why laws regarding FTCs were changed in the last year. From 6 December 2023, the Fair Work Act 2009 (Cth) (the Act) has put in place several limitations in engaging employees on FTCs. Employers must comply with these rules as breaching them may lead to lengthy and costly legal proceedings and civil penalties. Alongside the Fair Work Information Statement, employers now must provide employees hired on FTCs with the Fixed Term Contract Information Statement.
This factsheet aims to provide employers, particularly small businesses with limited resources and no human resources consultants, with a summary of key points employers should know about new limitations on the use of FTCs.
New limitations on the use of fixed term contracts
Contracts entered into after 6 December 2023 have the following time limitations:
This means that even if a contract has two renewal or extension options which add up to a total period of less than 2 years, it will be invalid. This is because it has more than one renewal or extension option.
Additionally, FTCs cannot be offered to employees if:
3.The previous contract was also an FTC; and
4. The previous FTC and the new FTC are for the same, or similar, work; and
5. The employment relationship significantly continued between the previous and new FTCs; and
6. If any of the following apply:
a. The previous FTC was renewed and extended; or
b. The total period of employment between the previous and new FTCs is more than 2 years; or
c. The new FTC has an option to renew or end; or
d. There was an initial FTC (before the previous FTC) between the employer and employee:
i. That was an FTC;
ii. That was for same or similar work; and
iii. Where the employment relationship significantly continued between the FTCs.
If the above rules are breached, then the contract will continue to remain on foot, beyond the specified end date.
Example
Flavia is a plumber and works at Easy Pipes, a plumbing business in Murray Bridge. Flavia was initially hired on a 6-month fixed term contract in September 2023 (initial contract), which was due to end in March 2024. The initial contract had an option to extend for one year, which was used and extended her contract to March 2025.
In March 2025, after Flavia’s initial contract finished, Easy Pipes offered her a new 12-month contract to work as Plumber (new contract). Flavia accepts the new contract.
The new contract breaches the FTC limitations because:
Thus, the term in Flavia’s new contract which says the end date is March 2026 is ineffective, and the contract will continue beyond that date.
Anti-avoidance provisions
The Act contains ‘anti-avoidance’ rules that prevent employers from dodging the new limitations that give rights to employees. These rules prevent employers from:
Breaching the above rules could be considered as taking adverse action against an employee. The employee may then be in their rights to make a General Protections claim.
Exceptions to the new limitations on the use of fixed term contracts
The Act contains several exceptions to the new rules about FTCs. There are situations where the limits on FTCs do not apply. These include, but are not limited to, the following situations:
Relates to work funded by government, and
The funding is payable for a period of more than 2 years, and
There are no reasonable prospects that the funding will be renewed by the end
Example
Natalya is a software engineer with 15 years of experience. She is about to start a new job as a Senior Manager. Her contract is for a period of 3 years and states the salary is $160,000 per year. This breaches the FTC limitation rules because the income is under the high-income threshold and it is not for a specific task involving specialised skills.
Example
Rowan is appointed to the Board of Directors of Real Work Safety, a company that specialises in PPE for the construction industry. Rowan’s contract is for a period of five years. This is allowed because the contract relates to a governance position.
Note: The laws around fixed term contracts can be complex. It is essential to obtain independent advice to ensure you are complying with the relevant laws. If you are a small business, you may be eligible for assistance from the Fair Work Ombudsman. For more information, see this link: https://smallbusiness.fairwork.gov.au/help-for-small-business#access-specialist-help-and-information.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
As a worker, being dismissed can often feel unfair and/or harsh. The laws about termination of employment can be confusing, which can make the whole experience of being dismissed feel even worse.
Although a dismissal can feel unfair, and many workers may have heard about ‘unfair dismissals’ as a legal remedy, not everyone is eligible to go through the Unfair Dismissal process under the Fair Work Act 2009 (Cth) (the Act).
This factsheet aims to help workers understand the difference between the two most common dismissal claims under the Fair Work Act 2009 (Cth): (1) Unfair Dismissal and (2) General Protections involving dismissal.
IMPORTANT: Under the Fair Work Act 2009 (Cth), if you are dismissed, you only have 21 days to dispute the dismissal, so you should seek legal advice as soon as possible. Contact the Working Women’s Centre SA on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
Unfair Dismissal
Under the Act, an Unfair Dismissal is when a worker is dismissed (ie the worker did not freely and voluntarily resign), and the dismissal was harsh, unjust or unreasonable. When judging if a dismissal was harsh, unjust or unreasonable, some factors that will be taken into account include:
However, even if a dismissal is harsh, unjust or unreasonable, not all workers are eligible to make an Unfair Dismissal claim. To be eligible, a worker must have worked for the employer for a period of at least 6 months (if the business has 15 or more employees) or one year (if the business has less than 15 employees). If you are a casual worker, you need to show that you were working on a regular basis, which gave you a reasonable expectation of continuing to work in that way.
Additionally, a worker must be covered by an Award or an Enterprise agreement, or earn less than the high income threshold.
Unfortunately, we often see situations when even though a worker was dismissed unfairly or harshly, they are still not able to seek remedies under the Unfair Dismissal system because they do not meet the eligibility requirements (eg only worked for 3 months). In these situations, they might be eligible for another claim to dispute the dismissal.
General Protections involving dismissals
If you are dismissed, and you are not eligible for an unfair dismissal claim, you may have a General Protections involving dismissal claim. Unlike an unfair dismissal claim, there is no minimum employment period a worker must complete to be eligible to make a General Protections involving dismissal claim.
Under the Act, general protections laws state that a person must not take harmful action (adverse action) against another person because the other person:
A General Protections involving dismissal claim is when an employer dismisses a worker (ie takes adverse action against them) because the worker has exercised a workplace right or has the benefit of a workplace protection. For example, if a worker exercises their right to make a complaint or ask a question about their employment, and an employer dismisses the worker because of this, the worker can make a General Protections involving dismissal application to dispute this dismissal.
Example
Five months ago, Emilia started working as a Machine Operator at a mining site in Coober Pedy. They got along well with the other workers on the site, and never received any negative feedback from their supervisors. Last week, Emilia noticed that their most recent pay slip did not include the extra 7 hours they worked that fortnight. Emilia asked their supervisor, Matt, if this could be corrected. Matt said he would look into it.
A few days later, Emilia was called into Matt’s office and given a letter. The letter informed Emilia that they did not pass their probation period, so their employment will be terminated. The letter also said Emilia will be paid one week’s pay in lieu of notice.
In the above example, although Emilia was unfairly and harshly dismissed, without warning or a valid reason for dismissal, they are not able to make an Unfair Dismissal claim because they have not worked for the employer for at least six months. However, Emilia may be able to make a General Protections involving dismissal claim because they exercised their workplace right to question their pay, and then they were dismissed.
If you have been dismissed and you are not sure whether you can make an Unfair Dismissal or General Protections involving dismissal claim, contact the Working Women’s Centre SA on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
The Australian Human Rights Commission’s most recent national survey on sexual harassment in Australian workplaces reveals that during 2017-2022, about 1 in 3 people (33%) were sexually harassed at work (41% of women and 26% of men).[1]
With sexual harassment being this common in Australian workplaces, most employers likely will, at some point, receive a complaint about sexual harassment from a worker.
It is important to take such complaints seriously and investigate them in a timely manner. Ignoring or mishandling a worker’s sexual harassment complaint could increase an employer’s liability and lead to lengthy and costly legal disputes.
This factsheet aims to provide practical information to employers, particularly small businesses, who often do not have the resources to employ dedicated human resources professionals, on effectively responding to and dealing with workers’ complaints of sexual harassment.
Employer’s legal obligations
An employer will be treated as legally responsible for sexual harassment done by its employees if the employer cannot show that it took all reasonable steps to prevent the sexual harassment from happening.[2]
As of 13 December 2022, employers also have a legal positive duty to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment in the workplace.[3]
‘Positive duty’ means employers must be proactive in preventing workplace sexual harassment before it happens, rather than simply reacting after it has happened.
What do the above legal obligations mean in practice? How can employers show that they took ‘all reasonable steps’ and ‘reasonable and proportionate measures’?
#1: Have a clear and thorough sexual harassment policy
A strong sexual harassment policy must define what sexual harassment is and give examples of behaviour that will be treated as workplace sexual harassment, including relevant, industry-specific examples that could arise in your working environment. Examples include:
The policy should state that sexual harassment is against the law, which may make employers vicariously liable, and refer to the relevant federal and state laws.[4]
The policy should make clear that the workplace has zero tolerance for sexual harassment and any breach of the policy will have serious consequences like disciplinary action or termination of employment.
The policy should also set out an internal complaints process which clearly outlines:
Lastly, the sexual harassment policy should be communicated and made accessible to all staff, so they are aware of it throughout the course of their employment. Employers often communicate workplace policies to new employees as part of the orientation and onboarding process, but it is important to regularly remind staff of these policies and where to access them.
#2: Provide regular, mandatory sexual harassment training
It is important for employers to provide practical sexual harassment training to all staff. The training should aim to teach staff to:
Staff in management and leadership positions should further be trained to understand their obligations, especially in relation to:
Training sessions should be regular, so staff are aware and up to date with changes to sexual harassment laws and obligations. Training needs to be meaningful and industry-specific. For example, fast ‘tick and flick’ style multiple-choice online training exercises have been held by the Courts to be inadequate to meet an employer’s legal obligation in this area.
#3: Listen to the worker making the complaint and take it seriously
If you receive a complaint about sexual harassment from a worker, it is important to give the worker a chance to speak and be heard. Depending on the seriousness of the complaint, it may be appropriate to help a worker access support services like Employee Assistance Programs, 1800RESPECT and/or SafeWork SA.
After giving the worker time to process the situation, arrange a further time to consult with the worker to get more information about the incident(s) and their options to resolve the matter. Remember to offer the worker a support person in these meetings. In the meantime, it may be appropriate to check in with the worker to see if they need any accommodations eg taking personal leave, working from home or any other measures for them to feel safe and supported in the workplace.
Do NOT ignore or brush off a worker’s complaint about sexual harassment. Unfortunately, we often see situations where employers have told workers things like, “It was just a joke, he didn’t mean any harm” or “It’s just how the industry is, you either have to toughen up or you won’t last much longer”. Minimising a worker’s complaint about sexual harassment or treating it lightly could lead to the worker making a legal claim against you.
#4: Investigate the complaint in a timely manner
Investigate the complaint as soon as practicable. Depending on the size of your business and its resources, it may be more appropriate for an impartial third party to carry out the investigation.
The investigation should be transparent, confidential and fair. Keep the involved parties updated on what information is required from them, how long the process will take and where the investigation is up to.
After getting information from the worker making the complaint (the complainant), let them know that you will next notify the person whom they are complaining about (alleged perpetrator) so they can have an opportunity to respond (in the interest of fairness).
Review the information provided by both parties and check if further information is required to support the claims made. Then, assess all information and determine if, on balance, the allegations are likely to have (or have not) occurred.
#5: Decide on an appropriate and reasonable outcome
Depending on the allegations, outcome of the investigation and your consultation with the complainant regarding potential ways to resolve the complaint, decide on an appropriate and reasonable outcome.
Potential outcomes can include:
IMPORTANT: It is essential that you obtain independent advice to ensure the outcome is suitable for the specific circumstances of the complaint.
#6: Review existing policies and provide a refresher
Even after a complaint has been dealt with, it may be useful to review the existing sexual harassment policy and training session to see if anything could be improved or changed, particularly in light of the recent complaint.
Once amended, it should be circulated to all staff so they are aware of any chances. It may also be appropriate to provide a sexual harassment training refresher session.
If you have any questions or would like to enquire about what kind of training the WWCSA offers, speak to one of our Training Officers on 08 8410 6499 or training@wwc.org.au.
[1] The Australian Human Rights Commission
[2] Sex Discrimination Act 1984 (Cth) s 106 (‘SDA’).
[3] SDA s 47c.
[4] SDA s 28B and Equal Opportunity Act 1984 (SA) s 87.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This information is part of a series of resources for workers representing themselves in conciliation conferences (for example, in the Fair Work Commission, South Australian Employment Tribunal, Australian Human Rights Commission, etc.) Please read our previous factsheet with information about conciliation conferences here: https://wwcsa.org.au/resources/conciliation-conference-information/.
What are ‘Terms of Settlement’?
If parties participating in a conciliation conference come to an agreement, the conciliator (or the parties themselves) will draft a ‘Terms of Settlement’ document. This document is sometimes also called a ‘Settlement Agreement’, ‘Deed’ or ‘Deed of Release’. It outlines what the parties have agreed on to resolve the dispute or issue.
Sometimes, employers ask employees who have resigned or been dismissed to sign a similar document known as a ‘Separation Agreement’ or ‘Severance Agreement’.
Once both parties sign the document, it becomes a binding contract. You should carefully read and get advice on the terms before signing because you may be giving up important rights in the future.
What are some examples of terms?
The terms (also known as clauses) will depend on what the parties have agreed on to resolve the matter.
For example, if your employer agreed to pay you for the wages you lost after being dismissed and out of work for six weeks, the document can include a payment term, such as:
‘The Respondent [ie the employer] will pay the Applicant [ie you] an amount of $5,000, as an Employment Termination Payment, within 7 days of the parties signing this document.’
Alternatively, if your employer agreed to return you to your previous job, the document can include a reinstatement clause such as:
‘The Applicant will be reinstated at the Respondent’s business from [insert date] 2024 as a [insert job] , for thirty (30) hours per week on a permanent part-time basis, noting that there is no break in continuity of employment.’
If your employer agrees, you can also request a reference or at least a statement of service and record it in the following terms:
‘Within 14 days of the Applicant and the Respondent signing this document, the Respondent will provide the Applicant with a statement of service that:
Terms to watch out for!
Release or mutual release
Release clauses prevent both parties from making any more legal claims in the future against each other.
Case Example:
Sara was advised that she is eligible to make both an unfair dismissal claim in the Fair Work Commission (FWC) and an underpayment claim in the South Australian Employment Tribunal (SAET). Sara makes an unfair dismissal claim first because she only has 21 days to make it, whereas an underpayment claim has a longer time limit of 6 years.
In the FWC conciliation conference, Sara and her employer agree to settle the unfair dismissal issue if the employer pays Sara 10 weeks’ compensation. After the conference, Sara receives a copy of the Settlement Agreement, which includes the following release clause:
‘On the Respondent complying with the payment clause, the Applicant releases and forever discharges the Respondent from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.
The Respondent releases and forever discharges the Applicant from any liability past, present or future from all claims, suits, demands, actions or proceedings arising out of or connected with the Applicant’s employment with the Respondent, including but not limited to the cessation of the employment.
Nothing in these terms of settlement affects any claims, suits, demands, actions or proceedings the Applicant has or may have under statute, an industrial instrument or common law for a work-related injury, illness, disease or death, or under superannuation legislation.*’
*Please note that by law, parties cannot contract out of workers compensation and superannuation claims.
If Sara agrees to the above clause, then she cannot make an underpayment claim in the future. To protect her underpayment claim, she should have asked for a ‘carve out’ clause to make an exception for the underpayment claim under the release clause. For example, the third paragraph could be amended to:
‘Nothing in these terms of settlement affects any claims or actions the Applicant may have at any time
Confidentiality and non-disparagement terms
Confidentiality terms require parties to keep some or all details of the matter confidential, as part of settling the matter. Such details can include: the amount that the Respondent will pay to the Applicant, details of the alleged conduct of the parties, the entire settlement agreement, etc. These terms are also known as non-disclosure agreements (NDAs).
A confidentiality clause can look like:
‘The Applicant and the Respondent will not disclose the terms of this agreement to anyone other than as required by law or to legal and/or financial advisers.’
Non-disparagement terms require parties to not talk speak badly about each other. An example of this is:
‘Neither the Applicant nor the Respondent will disparage or denigrate each other.’
Confidentiality and non-disparagement clauses can be appealing to workers to protect their privacy and reputation and to negotiate higher compensation. However, these clauses also have the effect covering up an employer or perpetrator’s poor conduct and silencing a worker that has experienced harm in their employment, especially in cases of sexual harassment, discrimination and bullying. Thus, these clauses can perpetuate a toxic workplace culture that addresses problems mainly through compensation and NDAs rather than through accountability, training and strong policies which could lead to lasting cultural change.
It is important to note that confidentiality and non-disparagement clauses are not standard, even if they are commonplace. You do not have to agree to these terms if you do not want to. However, conciliations, mediations and settlements involve negotiation, so you should think about what you are and are not willing to compromise on.
What happens after you sign a settlement agreement?
Once a settlement agreement has been signed (ie executed) by both parties, it becomes a binding contract. If there are clauses that require timely actions by the parties, and if a party does not comply, then you can seek to enforce the contract (eg a payment term that states the Respondent should pay the Applicant within 7 days of signing the agreement).
Importantly, do not file a Notice of Discontinuance to discontinue your application until the Respondent has complied with such terms.
Remember, if you are unsure about the terms in a settlement agreement or deed, you should get legal advice before signing it.
Contact the Working Women’s Centre on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
Under the federal Fair Work Act 2009 (Cth) (FWA) and National Employment Standards (NES), workers that are pregnant and/or parents have several entitlements to leave, flexible working arrangements, returning to work and other protections. Additionally, the FWA and South Australia’s Equal Opportunity Act 1984 (SA) (EOA) protect workers from discrimination and other negative action on the grounds of pregnancy and family or carer’s responsibilities.
Despite these rights and entitlements, discrimination and barriers related to pregnancy and caring responsibilities are widespread in Australian workplaces. According to the Australian Bureau of Statistics’ 2022-23 financial year survey, ‘Barriers and Incentives to Labour Force Participation, Australia’, 35.7% of women in Australia reported ‘caring for children’ as their reason for being unavailable to start a job or work additional hours. This statistic is even higher (75%) for mothers with children under the age of 15.[1] By contrast, just 7.3% of men report ‘caring for children’ as a barrier to starting a job or working more hours.[2]
Additionally, a recent 2024 review by the University of South Australia[3] showed women in Australia face several barriers and discrimination at work related to pregnancy and caring for children, including (but not limited to):
If you are an employer, you must comply with your legal obligations and ensure you do not intentionally or unintentionally discriminate against workers who are pregnant and/or parents; otherwise, you may be opening yourself up to costly and lengthy legal claim(s).
This factsheet aims to provide information to employers, especially small businesses with limited resources, on practical ways to avoid discriminating against their pregnant and/or parent workers and to.
Workers’ right to unpaid parental leave
According to the FWA, parental leave means up to 12 months’ unpaid leave that is related to either the birth or adoption of a worker’s child because the worker has responsibility for caring for the child.[4]
To be eligible for this leave, as a general rule, workers should have worked continuously for an employer for at least 12 months immediately before the leave period is expected to start.[5] This includes:
Do NOT attempt to dismiss a pregnant worker to block their eligibility for unpaid parental leave – this is unlawful.
Example
Ayla* was working as a bookkeeper at a dental practice, Happy Teeth Whyalla, from 1 June 2023 until 5 May 2024. On 12 April 2024, Ayla told her boss and the practice owner, Dr Dell, that she was pregnant and intends to take parental leave in or around July 2024.
Just two weeks later, Dr Dell called Ayla into a meeting to discuss a restructuring of the business. Dr Dell told Ayla that the practice needs to downsize to cut costs, so her role as a bookkeeper is no longer required and she was being made redundant.
Ayla was devastated given she was only weeks away from being eligible to unpaid parental leave. She was also confused because just two months earlier in a staff meeting, Dr Dell told everyone that the business was doing ‘really well’, so he is considering opening another location in Port Augusta.
Ayla continued to work during her notice period, but she observed she was given low-level tasks below her experience and being ignored and excluded from after-work social events. Ayla asked her co-worker Clara why everyone was acting differently around her. Clara said, “Dr Dell told us about your exciting news! We are just trying to be helpful since you’ve got a lot on your plate now…”
Ayla felt something was not right, so she got legal assistance to make dismissal and discrimination claims against Happy Teeth and Dr Dell.
Even though Dr Dell said his reason for dismissing Ayla was because he needed to restructure the business, an argument could be made that the real reason was because of Ayla’s recent pregnancy announcement. Defending this claim cost Dr Dell lots of time, energy and money in legal fees, which ultimately hurt his business in the long run.
Workers’ right to return to work
The FWA says that after ending a period of unpaid parental leave, a worker has a right to return to their pre-parental leave position.[6] However, if the position does not exist anymore, the worker has a right to return to a position they are qualified for which is closest in status and pay to their previous role.[7] In the latter situation, an employer has a duty to tell and consult with the worker when the employer makes a decision that will affect the status, pay and/or location of the worker’s previous position.[8] This duty means an employer must take all reasonable steps to tell and give the worker an opportunity to discuss the employer’s decision.
Flexible Working Arrangements
Although workers have a right to return to return to their pre-parental leave position, workers who are parents or carers of a child also have a right to request flexible working arrangements. This means that previously full-time workers may request to return to work on a part-time basis to care for their child.[9] Note that a flexible working arrangement is for a specified period of time and is not a permanent change that affects the worker’s substantive pre-parental leave role.
An employer must respond to the worker’s request for a flexible working arrangement in writing within 21 days. An employer can refuse this request, but only if the employer:
Some examples of reasonable business grounds include if:
Do NOT attempt to return a worker returning from parental leave to a lesser position – this is unlawful
Example
Since February 2022, Dana has been employed by a winery in the Barossa Valley as a sommelier and works part time, three days per week. On 2 September 2023, she went on unpaid parental leave after she and her partner Tina adopted a child. Dana told her boss, Steve, that she will take the full 12 months of leave she is entitled to and will come back on 1 September 2024.
In August 2024, Dana reached out to Steve to start planning her return to work. Steve told Dana that the winery has been doing well over the last year, and they have hired lots of casual staff. Because of this, Steve said he is not able to offer Dana three days of work per week, but he could still offer her three days per fortnight. Steve also said that he is happy to make her a casual moving forward so she can get casual loading, and because it will be much more flexible for Dana as a new parent.
Dana declined this offer and said she prefers the stability of working part time three days per week. However, Steve said his hands are tied and Dana should either ‘take it or leave it’.
Dana thought this was unfair, so she got legal assistance to make a discrimination claim against the winery and Steve.
Although Steve thought he was being helpful by offering Dana a casual position with more flexibility, in reality he is offering Dana a worse off position with less stability and no rights to paid personal and annual leave. Additionally, Dana legally has the right to return to her permanent part time position. Defending himself from Dana’s claim used up a lot of Steve’s time, energy and resources.
Key takeaway
Plain and simply – when a worker tells you they are expecting a child, do not start treating them differently even if you think you are helping them. Each worker is different – some may want to take the full 12 months’ of unpaid parental leave, while others may only want to take 6 months and come back to work in flexible ways. Listen to and genuinely consider what the worker is requesting due to their specific circumstances.
If you are an employer and would like further resources and/or training, get in touch with our Training staff by completing an enquiry form here: https://wwcsa.org.au/workplace-training/.
[1] https://www.abs.gov.au/statistics/labour/employment-and-unemployment/barriers-and-incentives-labour-force-participation-australia/2022-23
[2] https://www.abs.gov.au/statistics/labour/employment-and-unemployment/barriers-and-incentives-labour-force-participation-australia/2022-23
[3] https://www.unisa.edu.au/contentassets/8ae25a7ca90845c7a5fe38e3872b34b7/national-review-pregnant-parent-workers-18032024.pdf
[4] FWA s 70.
[5] FWA s 67
[6] FWA s 84.
[7] FWA s 84.
[8] FWA s 83.
[9] FWA s 65(1B).
[10] FWA s 65A.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
This is the Working Women’s Centre SA’s third instalment of our sexual harassment self-representation toolkit series. Our previous factsheets in this series are:
This factsheet will guide you through lodging a sexual harassment dispute in the Fair Work Commission (FWC). To be eligible to lodge the dispute, the sexual harassment must have occurred on or after 6 March 2023, and you have 2 years from the date the sexual harassment conduct occurred to lodge the dispute.
REMINDER: You can only make a sexual harassment claim in one jurisdiction!
Unsure of whether to make a claim in the Australian Human Rights Commission, Fair Work Commission or Equal Opportunity SA? One jurisdiction may be better than the other depending on how much time has passed since the incident, where your employer is located, etc. It is important to get legal advice before making a claim, especially if you have made or intend to make a workers compensation claim.
The relevant form is the Form F75, which can be accessed below:
There is no fee to make this application.
Select ‘by otherwise dealing with the dispute’.
If you and the person you are alleging sexual harassment against are still working together, and you are concerned you may experience more sexual harassment in the future, you can instead select ”by making a stop sexual harassment order and by otherwise dealing with the dispute”.
Select ‘an aggrieved person (a person who alleges they have been sexually harassed in connection with work)’.
Part 1 – About the parties and what happened
Insert your details and select which option best describes your connection to work.
Then, skip to Question #6.
Insert details of your employer (ie the business).
The organisation(s) and/or person(s) you are making a claim against are called ‘Respondents’ as they will be responding to your claim. This can be your employer (ie the company or business), individual manager(s) and/or the individual(s) who perpetrated the sexual harassment.
Insert the details of all the Respondents you want to include.
Then, if applicable, complete Question #8, otherwise skip to Question #9.
Insert relevant details about what happened to you, including dates, names of individuals, locations, witnesses, etc, and how the sexual harassment has affected you (eg confidence, self-esteem, stress, financially, etc). Avoid long, complicated paragraphs. It is best to use headings, numbered paragraphs and dot points.
If you have a lot of information to include, you can also create a separate document to answer this section and attach it to your application. If you do this, simply write, ‘Please see the attached summary’ under this section.
Include any supporting documents that may help your application, including letters, emails, text messages, screenshots, photos, etc.
10-13. Employer policies and procedures
Answer these questions to the best of your ability.
Then, skip to Part 3 if you are not also seeking a stop sexual harassment order.
If you are also seeking a stop sexual harassment order because there is a risk the alleged perpetrator/s may sexually harass you again, complete Part 2, 15. Here, you can ask for measures to be made that would help you feel safe at work, for example, sexual harassment training and/or removing the alleged perpetrator/s from your team or immediate work area.
Part 3 – Otherwise dealing with the dispute
Insert your preferred outcome(s). This can include: a letter of apology, compensation for financial losses you experienced because of the harassment (eg lost wages, medical expenses), compensation for stress, suffering or humiliation (ie non-economic loss), an agreement for the Respondent(s) to undergo relevant training or to change their policies and procedures.
Part 4 – Is assistance required to access the Commission’s services?
17-18. Answer accordingly.
Page 19 – Lodging the application
Insert your details and sign the form. A digital signature is fine for this.
You can then lodge the form and the supporting documents by either:
After submitting the form, you should get an acknowledgement email and letter from the FWC.
The FWC will then contact the Respondents to let them know about the case. They will provide the Respondents with a copy of your complaint and any attachments you have included (with your personal contact details removed for your privacy). The FWC will ask the Respondents to respond to the application within 7 days.
The FWC will generally deal with the dispute at first instance by holding a Member conference.
A Member conference is a confidential meeting between the Applicant, Respondent(s) and a FWC Member. Members will help parties communicate and guide discussion by raising questions and making suggestions to assist the parties in reaching a resolution. The Member is impartial, does not take sides and cannot make any decisions.
Conferences are conducted ‘without prejudice’, which means nothing that is said in the meeting can be referred to in future proceedings if the matter does not resolve at the conference. Because the conferences are confidential, you cannot make recordings or publish information (including on social media) about what was said or done during the conference.
Tip: Mark your calendar with the conference date
You will receive an email from the FWC with details of the conference. This will include the date, time and location. Conferences can be held online, in-person or over the phone. If you have a strong preference for how the meeting should be conducted (ie you do not feel comfortable attending in person and would feel more at ease with an online or phone conference), you can indicate this preference to the FWC via email and they will take it into account.
You can also elect to have a support person present with you during the conference, like a friend or a family member. If you would like to have a support person present, you should let the FWC know ahead of time.
It is important that you attend the conference because if you fail to attend, the Member may see this as a lack of interest in proceeding or a failure to cooperate on your part. As a result, they may decline to progress the dispute.
Preparing for the conference
During the conference
The conference will start with a joint session with you, the Respondent(s) and the FWC Member. The Member will start with an introduction and explain how the conference will proceed.
The Member will then ask the Applicant (you) to say an opening statement summarising your case. Here, you can tell your story and have an opportunity to be heard. You can talk about the effect the sexual harassment had on you. Remember to concentrate on key points and provide relevant information that will support your case. Avoid long tangents and unnecessary information.
The Member will then give the Respondent(s) and opportunity to respond. Be respectful and do not interrupt others. If a Respondent says something you disagree with, do not assume the Member agrees with them. If you disagree with a statement the Respondent/s have made, wait until they have finished speaking and then ask the Member if you can address that point in a respectful manner. If you do not feel comfortable saying this in the joint session, you will have an opportunity to speak privately with the Member after the joint session.
You can ask for a break at any time during this process.
The Member will usually close the joint session and then speak with each side privately, in separate sessions, and ask for offers on how they wish to resolve the dispute. The offers will be taken to the other side.
The Member facilitates a negotiation and may go back and forth between the parties exchanging offers several times.
If the parties reach an agreement on the resolution, the Member can assist the parties to draw up a written agreement. This is a legally binding and enforceable contract, so carefully review the terms before signing.
If the FWC is satisfied that all reasonable attempts to resolve the dispute have been, and are likely to be, unsuccessful, then the FWC must issue a certificate saying this. Then, there are two options available to you:
Option 1: Arbitration
If you and the Respondent consent (ie agree) that the dispute should remain in the FWC so the FWC can arbitrate (ie make a decision), then the parties should notify the FWC within 60 days after the certificate is issued. This process is called consent arbitration.
Option 2: Court application
If parties do not consent to arbitration, then the certificate allows you to take the dispute to the Federal Circuit and Family Court of Australia or the Federal Court of Australia. You must make the court application within 60 days after the certificate is issued.
You should seek further legal advice before starting a court case as the process can be complicated, lengthy and costly.
Contact the Working Women’s Centre on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Creating an Inclusive Workplace for People With Disabilities
According to the Australian Bureau of Statistics’ most recent Disability, Ageing and Carers, Australia: Summary of Findings survey in 2018, 17.7% of Australians have a disability and 5.5% of Australians have a severe disability.[1] Almost 10% of people with a disability aged 15 years or older reported experiencing disability discrimination in the preceding 12 months.[2]
If you are an employer, you have a legal obligation to take reasonable precautions and exercise due diligence to prevent disability discrimination in the workplace. Failure to do so means you may be vicariously liable and legally responsible for the discriminatory actions of your employees or agents.[3]
This factsheet aims to provide information to employers, particularly small businesses with limited resources, on practical ways to creative inclusive workplaces for people with disabilities.
What is disability discrimination?
Disability discrimination is when someone is treated less favourably because of their disability. Under federal and state laws, a disability means:
‘(a) total or partial loss of the person’s bodily or mental functions; or
(b) total or partial loss of a part of the body; or
(c) the presence in the body of organisms causing disease or illness; or
(d) the presence in the body of organisms capable of causing disease or illness; or
(e) the malfunction, malformation or disfigurement of a part of the person’s body; or
(f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
(g) a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.’[4]
A disability includes a current disability, a past disability or one that may exist in the future. [5]
Disability discrimination laws also cover a disability that is attributed to a person.[6] This means that a person can be discriminated against on the basis of a disability even if they do not have a disability but are presumed to have one, and they are treated less favourably because of that presumption.
Direct disability discrimination
Direct disability discrimination is when someone blatantly treats another person negatively or unfavourably because of a disability. This can include ableist slurs, comments or jokes, stereotyping or excluding someone because of their disability.
Example
Two weeks ago, Tiana started work as a junior apprentice mechanic at a car repair shop. Tiana is 17-years old and in a male-dominated workplace, and this is her first job so she is shy and nervous. Whenever she makes a mistake, her supervisor Carl mocks her and makes jokes about her being ‘slow in the head’ and ‘on the spectrum’ in front of the other workers.
Indirect disability discrimination
Indirect disability discrimination is a less obvious type of discrimination and typically happens when a policy applies equally to everyone, but in practice disadvantages some people because of their disability.
Example
Aisha is a data analyst and works for a large business that provides all its employees with the same 13” screen laptop.
Aisha’s astigmatism has been getting worse from staring at a small screen all day. She was advised by her doctor that she should switch to using a large desktop monitor or a laptop with a bigger screen.
Aisha receives a medical letter from her doctor and passes it onto her boss Steve. Steve refuses her request because he does not want to look like he’s ‘playing favourites’ by giving Aisha new, bigger equipment.
What obligations does an employer have to a worker with a disability?
Under the Disability Discrimination Act 1992 (Cth) and the Equal Opportunity Act 1984 (SA), it is unlawful to discriminate against workers in employment because of a disability.
The term ‘workers’ includes: job applicants, employees, agents and independent contractors.
The term ‘employment’ includes[7]:
Exceptions
However, it may not be unlawful to exclude a person on the basis of a disability if that person is unable to carry out the inherent requirements of particular work[8] or adequately perform the work without endangering themselves or others.[9] The term ‘inherent requirements’ means necessary or essential parts to perform the work. For example, to perform the work of a taxi driver, it is essential for a worker to have an appropriate licence.
Before excluding a person in this way, employers must consider if the person with a disability can be provided with reasonable adjustments . The term ‘reasonable adjustments’ in this context means possible and achievable modifications to help someone do their work. For example, a reasonable adjustment for a worker that uses a wheelchair may be to install ramps in the workplace.
However, employers do not have to make adjustments if making the adjustments would cause them unjustifiable hardship. The term ‘unjustifiable hardship’ means severe and unfair hardship. For example, reasonable adjustments to renovate a bathroom and install a lift in a workplace to make it wheelchair accessible may cause unjustifiable hardship to a small not-for-profit employer with limited funding.
To determine if an adjustment imposes unjustifiable hardship, employers must consider:
Example
If we look at Aisha’s case above under ‘Indirect disability discrimination’, Steve could have made an adjustment for Aisha by providing her with a large monitor or a laptop with a bigger screen. It is unlikely that purchasing new equipment would have imposed an unjustifiable hardship on Steve, particularly as it is a large business.
What can I do as an employer to create a disability-inclusive workplace?
As an employer, you have the power to actively shape the environment of your workplace and to create a standard that does more than just the bare minimum.
Below are four practical suggestions with steps to help you create an inclusive workplace for people with disabilities.
Implement a comprehensive anti-discrimination policy
Ensure equitable recruitment and employment
Review and amend existing policies
Overall, it will be important to take a human-centred approach when taking the above steps. Consult with staff, particularly workers with a disability, and seek feedback about how inclusive the workplace is and how it can be improved.
Remember that positive, safe and inclusive workplaces need to be maintained – it is an ongoing process. Regularly check in with staff, continue to provide training and encourage empathy and respect amongst workers.
Resources
If you are an employer and would like further resources and/or training, get in touch with our Training staff by completing an enquiry form here: https://wwcsa.org.au/workplace-training/.
This factsheet is the third instalment of our ‘Creating an Inclusive Workplace’ series. Our previous factsheets in this series are:
[1] Australian Bureau of Statistics, ‘Disability, Ageing and Carers, Australia: Summary of Findings’ (2018) https://www.abs.gov.au/statistics/health/disability/disability-ageing-and-carers-australia-summary-findings/latest-release.
[2] Ibid.
[3] Disability Discrimination Act 1992 (Cth) ss 122-123 (‘DDA’); Equal Opportunity Act 1984 (SA) s 91 (‘EOA’).
[4] DDA s 4; EOA s 5.
[5] DDA s 4, EOA s 66.
[6] Ibid.
[7] DDA ss 15-17; EOA ss 67-68.
[8] DDA s 21A.
[9] EOA s 71.
[10] DDA s 11.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Introduction
This is the Working Women’s Centre SA second instalment of our sexual harassment self-representation toolkit series. Our previous factsheet on ‘Making a Sexual Harassment Complaint to the Australian Human Rights Commission’ can be viewed here.
This factsheet will guide you through making a sexual harassment complaint to Equal Opportunity SA (EOSA). You have 12 months from the date the sexual harassment conduct occurred to make your complaint.
REMINDER: You can only make a sexual harassment complaint in one jurisdiction!
Unsure of whether to make a complaint under federal laws or state (SA) laws? One jurisdiction may be better than the other depending on how much time has passed since the incident, where your employer is located, etc. It is important to get legal advice before making a complaint.
You can either complete the form online or print out a paper version to post or email to EOSA.
There is no fee to make a complaint to EOSA.
Part A – Complainant details (About you)
As you are the person making the complaint, you are the ‘Complainant’.
Insert your details and contact information. You do not need to include your address if you are not comfortable doing so.
Part B – Organisation or individual you are complaining about
The organisation(s) and/or person(s) you are complaining about are called ‘Respondents’ as they will be responding to your complaint. This can be your employer (ie the company or business), individual manager(s) and/or the individual(s) who perpetrated the sexual harassment.
Insert the details of all the Respondents you want to include. For example, Respondent 1 – (Employer details), Respondent 2 – (individual’s details), etc.
Part C – What is your complaint about?
Under ‘When did the alleged event(s) happen?’ insert the date or time period of when the sexual harassment occurred.
Select ‘I have been sexually harassed’ and any other boxes that apply. Being victimised is when a person has been treated unfairly because they made a complaint or tried to make a complaint. If this happened to you, select this box too.
Under ‘Where did these things happen?’ select ‘Employment’.
Under ‘Please tell us what happened, and why you think it is discrimination, sexual harassment or victimisation’ insert relevant details about what happened to you, including dates, names of individuals, locations, etc. Avoid long, complicated paragraphs. It is best to use headings, numbered paragraphs and dot points.
You can also create a separate document to answer this section and attach it to your complaint. If you do this, simply write, ‘Please see attached complaint summary’ under this section.
Include any documents that may support your complaint, including letters from your employer, text messages, screenshots and/or photos which evidence the sexual harassment.
Under ‘What (if anything) have you done to try to resolve your complaint?’ insert relevant details (eg if you made previous complaint(s) within the workplace and their outcome(s)).
Under ‘Have you talked to another organisation about this?’ answer accordingly (eg if you contacted SafeWork SA, the Fair Work Ombudsman, etc.)
Under ‘What effect (financial or personal) did the unfair treatment have on you?’ insert relevant details about how the harassment affected you (eg confidence, self-esteem, financially due to being unable to attend work and/or medical expenses, stress, etc.). Please seek legal advice if you have made or intend to make a workers compensation claim.
Under ‘How do you think this complaint could be resolved?’ insert your preferred outcome(s). This can include: a letter of apology, compensation for financial losses you experienced because of the harassment (eg lost wages, medical expenses), compensation for stress, suffering or humiliation (non-economic loss), an agreement for the Respondent(s) to undergo relevant training or to change their policies and procedures.
Statistical Information
Complete this section to help EOSA gather data about discrimination. Your details will not be made public.
Lodging the complaint
Once your complaint form is finalised and signed and you have all your supporting documents together, you can submit the documents in one of the following ways (online or email is preferable):
Note: If you are making another claim (eg an underpayment claim) against the same employer in the South Australian Employment Tribunal (SAET), then you can apply to have both matters ‘joined’ and dealt together with in SAET. At the time of lodging your EOSA complaint, notify EOSA of your SAET claim and request that your EOSA complaint be joined to the SAET claim and referred to SAET.
After submitting your complaint, you will receive an acknowledgement email from EOSA.
Once accepted, your complaint will then be allocated to a Commissioner or Conciliation Officer. They will contact you about resolving the complaint through a conciliation conference.
A conciliation conference is a confidential meeting between the Complainant (you), the Respondent(s) and a Commissioner or Conciliation Officer from EOSA who will help parties communicate and guide discussion by raising questions and making suggestions to assist the parties in reaching a resolution. The Commissioner or Conciliation Officer is impartial, does not take sides and cannot make any decisions.
Conciliations are conducted ‘without prejudice’, which means nothing that is said in the conciliation can be referred to in future proceedings if the matter does not resolve at conciliation.
Tip: Mark your calendar with the conciliation date
You will receive an email from EOSA with details of the conciliation. This will include the date, time and location. Conciliations can be held online, in-person or over the phone. Typically, they occur via MS Teams.
It is important that you attend the conciliation because if you fail to attend, the Commissioner may see this as a lack of interest in proceeding or a failure to cooperate on your part. As a result, they may decline to recognise your complaint as one to take action on.
Preparing for conciliation
During the conciliation conference
Private session
Before a conciliation begins, you will usually have a private session with the Commissioner or Conciliation Officer so they can check in with you and explain the conciliation process. The Conciliator will then have a private session with the Respondent to do the same with them.
Joint session
Then, there will be a joint session with you, the Respondent and the Commissioner or Conciliation Officer. The Commissioner or Conciliation Officer will ask the Complainant (you) to say a statement explaining your case. Here, you can tell your story and have an opportunity to be heard. You can talk about the effect the sexual harassment had on you. Remember to concentrate on key points and provide relevant information that will support your complaint. Avoid long tangents and unnecessary information.
The Commissioner or Conciliation Officer will then give the Respondent an opportunity to respond. Be respectful and do not interrupt others. If the Respondent says something you disagree with, do not assume the Commissioner or Conciliation Officer agrees with them.
You can ask for a break at any time during this process.
Once the joint session is finished, the conciliation will break into private sessions again.
Private sessions
Then, the Commissioner or Conciliation Officer will have a private session with you. They may comment on the strength and weaknesses of your respective cases. Here, you should put forward your proposal for resolving the complaint.
The Commissioner or Conciliation Officer will then have a private session with the Respondent and hear their response or counteroffer to your proposal to resolve the complaint.
The Commissioner or Conciliation Officer will continue to go between the parties with the aim to reach an agreement and pass messages between the parties.
If you and the Respondent reach an agreement, the Commissioner or Conciliation Officer can assist the parties to draw up a conciliation agreement. This is a legally binding and enforceable contract, so carefully review the terms before signing.
If the conciliation is unsuccessful, and the Commissioner of EOSA is satisfied that the complaint cannot be resolved by conciliation, then the Commissioner will notify you of this decision.
If you would like to pursue the complaint further, you have 3 months from the date of the Commissioner’s decision to reply to the Commissioner and request them to refer your complaint to the South Australian Civil and Administrative Tribunal (SACAT).
You should seek additional legal advice before pursuing your complaint further in SACAT.
Contact the Working Women’s Centre on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
If you have been advised that you are eligible to make a sexual harassment complaint to the Australian Human Rights Commission (AHRC), use this toolkit as a guide when filing your complaint.
REMINDER: You have 24 months from the date the sexual harassment conduct occurred to make your complaint.
You can either complete the form online or print out a paper version to post or email to the AHRC.
There is no fee to make a complaint to the AHRC.
Part A – About you, the complainant
As you are the person making the complaint, you are the ‘Complainant’.
Insert your details and contact information. You do not need to include your address if you are not comfortable doing so.
Part B – Who is the complaint about?
The organisation(s) and/or person(s) you are complaining about are called ‘Respondents’ as they will be responding to your complaint. This can be your employer (ie the company or business), individual manager(s) and/or the individual(s) who did the sexual harassment.
Insert the details of all the Respondents you want to include. For example, Respondent 1 – (Employer details), Respondent 2 – (individual’s details), etc.
Part C – What are you complaining about?
Select ‘I have been sexually harassed’. If you have experienced other discrimination, select other boxes that apply (eg if you were also discriminated against because of your race, disability, gender, etc.)
Victimisation is when a person has been treated unfairly because they made a complaint or tried to make a complaint. If this happened to you, select this box too.
Under ‘When did the alleged event(s) happen?’ insert the date or time period of when the sexual harassment occurred. In some cases, the AHRC may accept complaints for events that happened more than 24 months ago. If you are making a complaint more than 24 months later, you will need to explain why there was a delay in making the complaint. For example, if you were fearful of making a complaint, you were not aware of the time period or you were experiencing anxiety, trauma, etc. as a result of the sexual harassment.
Under ‘What happened?’ insert relevant details about what happened to you, including dates, names of individuals, locations, etc. Avoid long, complicated paragraphs. It is best to use headings, numbered paragraphs and dot points.
You can also create a separate document to answer this section and attach it to your complaint. If you do this, simply write, ‘Please see attached complaint summary’ under this section.
Include any documents that may support your complaint, including letters from you employer, text messages, screenshots and/or photos which evidence the sexual harassment.
Under ‘How do you think this complaint could be resolved?’ insert your preferred outcome(s). This can include: a letter of apology, compensation for financial losses you experienced because of the harassment (eg lost wages, medical expenses), compensation for stress, suffering or humiliation (non-economic loss), an agreement for the Respondent(s) to undergo relevant training or to change their policies and procedures.
Part D – Lodging the complaint
Once your complaint form is finalised and you have all your supporting documents together, you can submit the documents in one of the following ways (online or email is preferable):
A few days after submitting your complaint, you will receive an acknowledgement email from the AHRC.
There is currently a delay of at least 6 months for the AHRC to accept complaints. The time delay is usually listed in the acknowledgement email. There is no need to provide additional documents or submissions whilst your complaint is awaiting acceptance.
Once accepted, your complaint will then be allocated to a conciliator or investigator. They will contact you about resolving the complaint through a conciliation conference.
A conciliation conference is a confidential meeting between the Complainant (you), the Respondent(s) and a Conciliator from the AHRC. Conciliators help parties communicate and guide discussion by raising questions and making suggestions to assist the parties in reaching a resolution. The Conciliator is impartial, does not take sides and cannot make any decisions.
Conciliations are conducted ‘without prejudice’, which means nothing that is said in the conciliation can be referred to in future proceedings if the matter does not resolve at conciliation.
Tip: Mark your calendar with the conciliation date
You will receive an email from the AHRC with details of the conciliation. This will include the date, time and location. Conciliations can be held online, in-person or over the phone. Typically, they occur via MS Teams.
It is important that you attend the conciliation as your complaint may be terminated if you fail to do so.
Preparing for conciliation
During the conciliation conference
Private session
Before a conciliation begins, you will usually have a private session with the Conciliator so they can check in with you and explain the conciliation process. The Conciliator will then have a private session with the Respondent to do the same with them.
Joint session
Then, there will be a joint session with you, the Respondent and the Conciliator. The Conciliator will ask the Complainant (you) to say a statement explaining your case. Here, you can tell your story and have an opportunity to be heard. You can talk about the effect the sexual harassment had on you. Remember to concentrate on key points and provide relevant information that will support your complaint. Avoid long tangents and unnecessary information.
The Conciliator will then give the Respondent an opportunity to respond. Be respectful and do not interrupt others. If the Respondent says something you disagree with, do not assume the Conciliator agrees with them.
You can ask for a break at any time during this process.
Once the joint session is finished, the conciliation will break into private sessions again.
Private sessions
Then, the Conciliator will have a private session with you. The Conciliator may comment on the strength and weaknesses of your respective cases. Here, you should put forward your proposal for resolving the complaint.
The Conciliator will then have a private session with the Respondent and hear their response or counteroffer to your proposal to resolve the complaint.
The Conciliator will continue to go between the parties with the aim to reach an agreement and pass messages between the parties.
If you and the Respondent reach an agreement, the Conciliator can assist the parties to draw up a conciliation agreement. This is a legally binding and enforceable contract, so carefully review the terms before signing.
If the complaint cannot be resolved by conciliation and the President of the AHRC is satisfied the complaint cannot be resolved, the complaint will be terminated.
Once terminated, you can take the matter to the Federal Circuit and Family Court of Australia or the Federal Court of Australia. You must make an application to either Court within 60 days of the date your complaint was terminated.
You should seek further legal advice before starting a case in these Courts as the process can be lengthy and costly.
Contact the Working Women’s Centre on 08 8410 6499 to organise a legal advice appointment with one of our lawyers.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Instructions
Do not include this first page of instructions in your response to allegations letter. Delete this section after reading it.
This template sets out how to format a letter to your employer responding to allegations.
Insert details relevant to the allegations you were provided with, under each heading. You should respond to the allegations in clear and concise paragraphs.
Factors to keep in mind:
This template provides you with an example of how to set out your response to allegations. You should modify and adapt the template to suit the allegations you were presented with.
To send your letter follow the instructions provided in the allegations letter. If no instructions have been provided, you can respond via email or post. If you have been given a specific timeframe to reply by, note postage delays.
This letter is a guide and should not be taken as legal advice.
[Date]
[Name of employer]
[Full name of allegations letter writer]
[Address]
[Email address]
Dear [name of allegations letter writer]
RE: Response to Allegations of Misconduct
I write to you in relation to the allegations as provided to me on [date on allegations letter]. Detailed below is my response with respect to each allegation.
Allegation 1
[Paragraph/s responding to allegations]
Allegation 2
[Paragraph/s responding to allegations]
Allegation 3
[Paragraph/s responding to allegations]
Allegation 4
[Paragraph/s responding to allegations]
Allegation 5
[Paragraph/s responding to allegations]
[Concluding paragraph]
[Optional: I am a dedicated employee of x years. I am committed to my role and welcome the opportunity for further training.]
Regards,
[Signature]
[your name]
[your contact details]
For more information about responding to allegations, please refer to our Disciplinary Meetings: What Should I do? Fact Sheet.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
A person conducting a business or undertaking (PCBU) has a duty to manage Work Health and Safety (WHS) risks in the workplace, and to ensure the safety of workers.
Each industry has specific WHS risks relative to the type of work that is performed. It is important for both workers and employers to understand what these industry-specific risks are. Some risks are exacerbated when working in regional or remote areas due to the isolated geographical location and lack of resources in such areas.
Off the back of the Working Women’s Centre SA’s (WWCSA) recent regional outreach trip to Mount Gambier, this factsheet will provide information on the top industries in Mount Gambier and will provide resources to assist understanding of the WHS issues associated with these industries and how those issues can be managed.
According to the Australian Bureau of Statistics,[1] the highest density employment industries in the Mount Gambier region of South Australia are:
Common WHS hazards and risks associated with the agriculture, forestry and fishing industry include:
For more information on this industry’s hazards and risks and how to manage them, please see WorkSafe (QLD)’s resource here: https://www.worksafe.qld.gov.au/safety-and-prevention/hazards/workplace-hazards/agriculture/health-and-safety-tips-for-the-agriculture,-forestry-and-fishing-industry.
Common WHS hazards and risks associated with the construction industry include:
For more information on this industry’s hazards and risks and how to manage them, please see WorkSafe (QLD)’s resource here: https://www.worksafe.qld.gov.au/safety-and-prevention/hazards/workplace-hazards/construction.
Common WHS hazards and risks associated with the rental, hiring and real estate services industry include:
For more information on this industry’s hazards and risks and how to manage them, please see WorkSafe (QLD)’s resource here: https://www.worksafe.qld.gov.au/your-industry/rental,-hiring-and-real-estate-services.
Common WHS hazards and risks associated with the retail trade industry include:
For more information on this industry’s hazards and risks and how to manage them, please see Safe Work Australia’s resource here: https://www.safeworkaustralia.gov.au/safety-topic/industry-and-business/retail-services/managing-risks.
Common WHS hazards and risks associated with the health care and social assistance industry include:
For more information on this industry’s hazards and risks and how to manage them, please see Safe Work Australia’s resource here: https://www.safeworkaustralia.gov.au/safety-topic/industry-and-business/health-care-and-social-assistance/managing-risks.
Isolation and mental stress
Some particular risks we see amongst WWCSA clients working regionally, particularly in the agriculture, forestry and construction industries, are isolation and mental stress. Regional workers in these industries may be further geographically isolated by being placed in remote work sites, farms, cattle stations, etc. Workers may also be in these locations for days or weeks at a time.[2]
Being physically isolated for prolonged periods can lead to feelings of alienation, particularly when workers do not feel properly supported, which in turn can lead to burnout, fatigue and psychiatric injuries like depression and anxiety.
To manage these, it is important that workers have a clean and safe environment that are in good repair (e.g. working toilets, up to date first aid kits and fire extinguishers, lockers with functional locks, clean kitchens, etc.).[3] It is also important that there is a clear emergency plan for workers to follow in case of an emergency, particularly if there is no one else around to assist immediately.
To further manage isolation and stress, it is vital to establish and maintain regular communication channels so workers feel supported and connected to the rest of the workplace. This can include regular check-ins and meetings with supervisors and managers and access to Employee Assistance Programs (EAP).
Bullying and sexual harassment
Remote and isolated work can increase the likelihood of workers being exposed to hazards like sexual harassment.[4] This is because workers may be placed away from their usual place of work, their homes and support systems, which makes them vulnerable to aggression, bullying and sexual harassment.
Furthermore, sexual harassment is more prevalent in certain industries. The following statistics were released in the Time for Respect: Fifth national survey on sexual harassment in Australian Workplaces,[5] and show the extent to which sexual harassment is taking a toll in certain industries:
Women disproportionately experience sexual harassment in:
Retail Trade is one of the top five industries nationwide where incidences of sexual harassment are above the national average (national average is 33%, whilst retail trade is 40%).
The proportion of people harassed at their workstation (as opposed to break rooms, etc) was much higher in the Health Care and Social Assistance industry (45%).
The WWCSA are experts in gender-based violence and workplace sexual harassment, and we have lots of free resources on our website for both workers and employers. This includes:
For workers
If you’re experiencing workplace problems, contact the Working Women’s Centre on 08 8410 6499 to speak with one of our lawyers to get free legal advice about your workplace rights and potential legal remedies.
For employers
The Working Women’s Centre provides tailored training programs and consultation services for businesses on a range of topics including sexual harassment, bullying and building a positive team culture. Contact us on 08 8410 6499 to speak with one of our educators.
We also have free resources for small businesses on our website here: https://wwcsa.org.au/resources/?section=for-employers.
[1] https://dbr.abs.gov.au/region.html?lyr=sa3&rgn=40503
[2] https://www.safeworkaustralia.gov.au/safety-topic/hazards/remote-and-isolated-work/overview.
[3] https://www.safeworkaustralia.gov.au/safety-topic/hazards/remote-and-isolated-work/managing-risks.
[4] https://www.safeworkaustralia.gov.au/safety-topic/hazards/remote-and-isolated-work/managing-risks
[5] https://humanrights.gov.au/sites/default/files/document/publication/2022.11.25_time_for_respect_2022_final_digital.pdf
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Everyone should have the freedom to participate in public and political life. Political activity is an important way of challenging injustice and creating positive change.
Political activity could include things like expressing political opinions online, attending rallies, being involved in a union, being part of community advocacy, volunteering for a political party on election day, or expressing your views in your workplace.
In an employment law context, political opinion includes: membership of a political party; expressed political, socio-political, or moral attitudes; or civic commitment.[1]
This fact sheet outlines the relevant laws you should be aware of if you are planning to express your political opinion.
It is important to know what your rights are and whether you are legally protected from your employer taking or threatening to any action against you.
It is common for employers to have employment contracts, codes of conduct and/or policies which have terms to the effect of needing to comply with all company policies as varied from time to time and/or not bringing the employer’s business into disrepute.
These documents may also require employees to abide by company ‘values’ such as ‘respect’ and ‘inclusivity’, which can be used broadly and, in some cases, unreasonably.
There are even stricter policies for federal and SA public sector workers, who are bound by codes of ethics that stress impartiality and political neutrality.
If your employer thinks that you have breached your contract or company policies by expressing a political opinion in the workplace or outside of work, they may engage you in disciplinary procedures. They still need to follow reasonable disciplinary procedures.
For more information on disciplinary matters and what you can do, see our factsheet here: https://wwcsa.org.au/resources/disciplinary-meetings-what-do-i-do/.
Fair Work Commission
If you have been dismissed because of political expression, you may be eligible to make a claim for unfair dismissal if it was harsh, unjust or unreasonable. Please note that there are several criteria which determine whether you are eligible to make an unfair dismissal claim, and there is a strict 21-day time limit. Please see our full Unfair Dismissal fact sheet for further information.
Aside from Unfair Dismissal protections, the Fair Work Act 2009 (Cth) gives workers certain protections (called ‘general protections’) to exercise workplace rights and prevents employers from taking harmful action (called ‘adverse action’) against workers for exercising these rights. One of these rights is to be a union member, and to participate in industrial activity.
Another of these rights protects workers from discrimination at work on the basis of attributes like race, sex, age, political opinion, etc. However, the Fair Work Act says that the type of discrimination must also be unlawful under state anti-discrimination laws for a worker to be protected.
In South Australia, political opinion is not protected from discrimination under the Equal Opportunity Act 1984 (SA). This means that a worker is not able to make a general protections claim to the Fair Work Commission on the basis of political opinion discrimination. They might be entitled to make a claim if there was discrimination based on race, sex, disability, or one of the other grounds for discrimination in South Australia.
Australian Human Rights Commission (AHRC)
If you expressed your political opinion in the workplace and experienced discrimination in your employment because of it, you can make a complaint to the AHRC.
The AHRC has the power to investigate political opinion-based discrimination complaints. Although political opinion is not protected under Australian federal discrimination laws, your complaint would allege discrimination in employment under the ILO Convention concerning Discrimination in respect of Employment and Occupation, to which Australia is a party. For AHRC claims of this kind, a time limit of 12 months from the date the discrimination occurred applies.
A link to the AHRC complaint form can be found here: https://humanrights.gov.au/sites/default/files/2023-01/ahrc_complaint_form_10012023.pdf.
Once a complaint has been submitted, the AHRC will investigate the complaint and may try to resolve the complaint by conciliation. Conciliation is a form of dispute resolution that will take place between the employer and employee to resolve the issue (for example, by an apology, compensation or change of policy). For more information on the AHRC conciliation process see: https://humanrights.gov.au/complaints/complaint-guides/conciliation-how-it-works.
If the complaint is not resolved at conciliation, the AHRC President will decide if discrimination has occurred, and if it has, they may report the matter to the Federal Attorney-General. For more information about the AHRC process see: https://humanrights.gov.au/our-work/complaint-information-service/complaint-process-complaints-about-discrimination-employment.
Precautions you can take
To minimise the risks of expressing political opinions to your job, you could take the following precautions:
Get some legal advice
We recommend seeking legal advice regarding impacts of political expression on your job. Contact your union for advice as your first port of call, or join your union if you haven’t already. You can also contact the Working Women’s Centre on 08 8410 6499 to get legal advice and our lawyers will walk you through whether making a claim is an option for you
[1] https://www.fwc.gov.au/political-opinion#:~:text=Political%20opinion%20includes%20membership%20of,moral%20attitudes%3B%20or%20civic%20commitment.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This factsheet aims to provide information on what race discrimination looks like and what you can do if you have been racially discriminated against in the workplace.
Under the Racial Discrimination Act 1975 (Cth) (‘RDA’) and the Equal Opportunity Act 1984 (SA) (‘EOA’), it is unlawful to discriminate against someone because of their race.
Despite this, a 2023-2024 survey conducted by the Diversity Council of Australia showed that 59% of racially marginalised non-white workers felt that racism in their workplace was common, compared to just 22% of white workers. Additionally, six in ten Aboriginal and/or Torres Strait Islander workers reported experiencing discrimination or harassment in the last 12 months, which is nearly three times higher than what was reported by non-Indigenous workers.[1]
In light of these experiences, it is important for workers to be vigilant of racism at work and be aware of their right to a safe, non-discriminatory workplace.
What is race discrimination?
Race discrimination is when someone is treated negatively or less favourably because of their:
Both the RDA and EOA explicitly make it unlawful to discriminate against workers because of their race.[3] This includes discrimination against job applicants, employees, agents, independent contractors and contract workers.[4]
Direct race discrimination
Direct race discrimination is when someone blatantly treats you negatively or unfavourably because of your race. This can include making racist comments or jokes, stereotyping or excluding someone because of their race.
Examples
Indirect race discrimination
Indirect race discrimination is less obvious and happens when a policy applies equally to everyone, but in practice disadvantages people because of their race.
Example
Lawful discrimination
There are some limited situations where discrimination is not unlawful.
The RDA and EOA allow for ‘special measures’[5] or ‘schemes or undertakings’[6] to be carried out for the benefit of people of a particular race, particularly races that historically have been disadvantaged or discriminated against. This is to ensure substantive equality with other groups.
For exemptions not already covered by the EOA, applications can be made to the South Australian Civil and Administrative Tribunal (‘SACAT’).[7] SACAT can grant exemptions for up to three years.
Examples of special measures
Employers’ obligations and liability
Employers have a legal obligation to take all reasonable steps to prevent race discrimination. Employers can also be vicariously liable and legally responsible for the discriminatory actions of their employees and agents if reasonable steps are not taken.[8]
For more information on minimising liability and ensuring all reasonable steps have been taken, please see our other factsheet ‘Creating a Racially Inclusive Workplace’.
What to do if you have been discriminated against because of your race?
There are a few different legal options, and it is important to seek legal advice before deciding which option is best for your circumstances. Whatever you do, do not resign before getting advice as this will affect your options.
Complaints
You can make a complaint to either the Australian Human Rights Commission (AHRC) or the Equal Opportunity Commission (EOC).
AHRC
The AHRC handles complaints made under Commonwealth legislation (eg the RDA). You have 24 months to make a claim in the AHRC.[9] The AHRC complaint can be made by completing this form: https://humanrights.gov.au/complaints/make-complaint.
Once the AHRC receives your complaint, it will be assessed and investigated. It may also be conciliated. If the complaint is terminated, you may be able to appeal the decision to the Federal Court of Australia.
For more information, see the ARHC’s website: https://humanrights.gov.au/complaints#main-content.
EOC
The EOC handles complaints made under South Australian legislation (ie the EOA). You have 12 months to make a claim in the EOC.[10] The EOC complaint can be made by completing this form: https://www.equalopportunity.sa.gov.au/complaints/making-a-complaint.
Once the EOC receives your complaint, they will assess it to see if it is covered by the legislation. If the complaint is accepted, it will proceed to conciliation. If the complaint is declined, it may be referred to SACAT.
For more information, see the EOC’s website: https://www.equalopportunity.sa.gov.au/complaints/complaint-process.
Workers Compensation
Under the South Australian workers compensation system, workers can receive compensation for not just physical injuries, but psychiatric injuries too.[11] This is a no-fault system, which means you can be compensated regardless of whose fault it is.
If you suffer from a psychological injury as a result of experiencing racial discrimination in the workplace, you may be entitled to make a workers compensation claim. You will have to demonstrate that work ‘was the significant contributing cause of the injury’.[12]
General Protections Claim
If you have been dismissed or demoted or have experienced some other form of adverse action because of your race, you may be entitled to make a general protections claim in the Fair Work Commission.
Please note, where you have been dismissed, you will have 21 days from the date of dismissal to file a claim.
With so many options, how do you know which one is right for you? Contact the Working Women’s Centre on 08 8410 6499 to get legal advice and our lawyers will walk you through which one(s) are best for you.
[1] Diversity Council Australia, Inclusion@Work Index 2023-2024: Mapping the State of Inclusion in the Australian Workforce (Report, 2024) Inclusion@Work Index 2023–2024: Synopsis Report
[2] RDA s 9, EOA s 5, Pt 4
[3] RDA s 15; EOA Pt 4 Div 2
[4] RDA s 15; EOA Pt 4 Div 2
[5] RDA s 8
[6] EOA s 65
[7] See https://www.sacat.sa.gov.au/case-type/equal-opportunity/exemptions-to-the-equal-opportunity-act
[8] RDA s 18A, EOA s 91
[9] AHRCA s 46ph
[10] EOA s 93
[11] Return to Work Act 2014 s 4.
[12] RTWA s 7.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This factsheet aims to provide information on what a racially inclusive workplace looks like. If you are an employer, you have a legal obligation to take all reasonable steps to prevent race discrimination in the workplace. Failure to do so means you may be vicariously liable and legally responsible for the discriminatory actions of your employees or agents.[1]
A 2023-2024 survey conducted by the Diversity Council of Australia showed that 59% of racially marginalised non-white workers felt that racism in their workplace was common, compared to just 22% of white workers. Additionally, six in ten Aboriginal and/or Torres Strait Islander workers reported experiencing discrimination or harassment in the last 12 months, which is nearly three times higher than what was reported by non-Indigenous workers.[2]
A 2020 report by the Australian Human Rights Commission states that Aboriginal women and girls in particular often feel isolated, intimidated and unsupported as a result of being a small minority within their workplace.[3]
With these experiences and reports in mind, this factsheet provides examples of reasonable steps that employers and businesses can take to create a welcoming, supportive and safe workplace for all workers, regardless of race.
What is race discrimination?
Race discrimination is when someone is treated negatively or less favourably because of their:
Under the Racial Discrimination Act 1975 (Cth) (‘RDA’) and the Equal Opportunity Act 1984 (SA) (‘EOA’), it is unlawful to discriminate against workers because of their race.[5] This includes discrimination against job applicants, employees, agents, independent contractors and contract workers.[6]
For more information and examples of race discrimination, please see our ‘Race Discrimination and the Workplace’ factsheet.
What can I do as an employer?
As an employer, you have the power to actively shape the environment of your workplace and to create a standard that does more than just the bare minimum.
Below are three practical suggestions with steps to help you create a racially inclusive workplace.
1. Create strong anti-discrimination policies
Enshrine a comprehensive anti-discrimination policy
Ensure equitable recruitment and employment
Review and amend existing policies
2. Provide expert training and resources
3. Foster an accepting and safe workplace culture
Overall, it will be important to take a human-centred approach when taking the above steps. Consult with staff, particularly racially diverse workers, and seek feedback about how inclusive the workplace is and how it can be improved.
Remember that positive, safe and inclusive workplaces need to be maintained – it is an ongoing process. Regularly check in with staff, continue to provide training and encourage empathy and respect amongst workers.
If you are an employer and would like further resources and/or training, get in touch with our Training staff by completing an enquiry form here: https://wwcsa.org.au/workplace-training/.
[1] RDA s 18A, EOA s 91
[2] Diversity Council Australia, Inclusion@Work Index 2023-2024: Mapping the State of Inclusion in the Australian Workforce (Report, 2024) Inclusion@Work Index 2023–2024: Synopsis Report
[3] Australian Human Rights Commission, Wiyi Yani U Thangani (Women’s Voices): Securing Our Rights, Securing Our Future Report (Report, 2020) 518 https://humanrights.gov.au/sites/default/files/document/publication/ahrc_wiyi_yani_u_thangani_report_2020.pdf.
[4] RDA s 9, EOA s 5, Pt 4
[5] RDA s 15; EOA Pt 4 Div 2
[6] RDA s 15; EOA Pt 4 Div 2
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
At the Working Women’s Centre SA, we believe in promoting diverse and inclusive workplaces that value and respect the rights of all individuals, including lesbian, gay, bisexual, transgender, intersex, queer (or questioning), and asexual (LGBTIQA+) peoples. An inclusive workplace not only fosters a sense of belonging and equality but also enhances productivity and overall job satisfaction. This fact sheet aims to provide information on what an inclusive workplace looks like for LGBTIQA+ individuals, offering practical steps for organisations to create a supportive and welcoming environment for all employees.
Equal Opportunity and Non-Discrimination:
Identity and Expression:
Inclusive Policies and Benefits:
Safe and Respectful Work Environment:
Employee Resource Groups and Support:
Language and Communication:
Training and Education:
Remember, creating an inclusive workplace for LGBTIQAs+ people is an ongoing process. It requires commitment, education, and continuous effort from employers and employees alike. By fostering an environment that values diversity and respect, organizations can harness the full potential of their LGBTIQA+ workforce and create a positive and inclusive work environment for everyone.
If you are an employer and would like further resources and/or training, get in touch with our Training staff by completing an enquiry form here: https://wwcsa.org.au/workplace-training/.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
On 5 March 2020 the Sex Discrimination Commissioner, Kate Jenkins, released a report called ‘Respect@Work: Sexual Harassment National Inquiry Report’, in which the Commissioner made 55 Recommendations for the elimination of workplace sexual harassment.
The Anti-Discrimination and Human Rights Legislation (Respect@Work) Bill passed Parliament and received Royal Assent on 12 December 2022. It implemented the remaining Recommendations of the Respect@Work report.
Effective from 13th December 2022, employers have a legislated positive obligation to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation, as far as possible.
The significance of this amendment in terms of liability, is that an employer is now not only vicariously liable under the Sex Discrimination Act 1984 for Sexual Harassment in the workplace, but they now also have a positive obligation to be proactive and take preventative action to stop sexual harassment from occurring in the workplace.
Your obligation as an employer is to ensure the health and safety of your workers. A workplace is a dynamic place where people with different life experiences, different levels of power and responsibilities interact to create what is acceptable and unacceptable behaviour in that space. Because of this, all workplaces need to be continually and actively reviewing and ensuring that the space they are creating is safe and inclusive.
Image courtesy of AHRC.
There are various actions an employer can take to ensure they are meeting their positive duty.
The government has made it clear with these legislative amendments that Australia has a no tolerance policy to sexual harassment in the workplace. This attitude is reflected in the cultural change we have seen in the media and wider communities.
As of 13th December 2022, a person conducting a business or undertaking (PCBU) is exposing themselves to risk of legal action by failing to take preventative measures to prevent sexual harassment. If sexual harassment happens in connection with one of your employees, then you could be faced with one or more of the following outcomes:
As a part of an employer’s positive obligation to prevent sexual harassment, the organisation or business should proactively educate leaders, and other staff members in management, on the recent law reform and new obligations.
Powers of Australian Human Rights Commission
From 13 December 2023, the Australian Human Rights Commission will have regulatory powers to monitor and enforce compliance of this positive duty. These powers include conducting inquiries and applying to the federal courts for orders to be made against businesses.
To protect your workers, lower your liability of legal risk, and protect the reputation of your business, it is essential that you inform yourself of this positive obligation and what is required of you to satisfy this obligation.
The Working Womens Centre SA offers free and fee for service training for workplaces to educate them on their legal obligations under workplace and discrimination legislation. Our goal is to provide workplaces with the practical tools to support their staff through training, policy development and ongoing consultation.
Training Package – Preventing and Addressing Sexual Harassment
This training is for organisations and businesses to increase knowledge of what sexual harassment in the workplace is according to current legislation, including recent amendments that put a positive obligation on employers to prevent sexual harassment.
Employers will learn practical strategies to prevent sexual harassment at work, dealing with sexual harassment and discrimination complaints, and learn how to create a positive workplace culture free from inappropriate behaviours.
We work with you to tailor our packages to suit your specific context/industry and can tailor training for different people with varying responsibilities within your organisation.
This training package covers the following:
For any enquiries or to book a training session today, contact our office of 8410 6499, make an online enquiry, or email us at training@wwc.org.au.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
After much campaigning by Working Womens Centres, unions, feminists, and activists, significant changes have been made to Australia’s workplace laws in relation to sexual harassment as of December 2022.
The Sex Discrimination Commissioner, Kate Jenkins, released a report in 2020 of which the Commissioner made 55 recommendations for the elimination of workplace sexual harassment.
Some notable recommendations which have now been legislated by parliament to form part of Australia’s employment laws are the following:
Positive obligation means that your employer, or person who is conducting a business or undertaking that you work for, has a responsibility to prevent sexual harassment from occurring in the workplace. This is a shift from employers previously only being legally liable on behalf of a sexual harasser, after the sexual harassment has occurred. These new laws means that an employer or person conducting a business or undertaking must be proactive and take preventative action to stop sexual harassment from occurring in the workplace.
This obligation on a person conducting a business or undertaking (PCBU) to prevent sexual harassment extends beyond harassment perpetrated by colleagues and/or management internally. This extends to perpetration externally from customers, sales representatives etc.
A person conducting a business or undertaking (PCBU) has a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers. This is a term often used in Work Health and Safety laws. Some PCUB’s are not always employers so the use of both terms captures a wider group of responsible people.
There are many steps your employer can take in order to prevent sexual harassment. This will depend on the size of the business as to what is considered a ‘reasonable step’. Some of those steps are:
Options Before 6 March 2023
If you experience sexual harassment (one or more incidents) before 6 March 2023, you could if comfortable and safe do the following:
For more information about these options please read our fact sheet about sexual harassment in the workplace: https://wwcsa.org.au/resources/sexual-harassment-legal-options/ or give our Centre a call and book an appointment for legal advice.
If you have experienced sexual harassment in connection with your workplace, on 6 March 2023 or after you will be able to lodge a dispute with the Fair Work Commission.
Who can lodge a dispute?
If you are being sexual harassed and you are
and
The first or only incident of sexual harassment occurred on or after 6 March 2023, then you can lodge a dispute in the Fair Work Commission.
Who do you lodge the dispute against?
You can lodge the dispute against the person(s) who sexually harassed you and the employer that you’re both employed by. You can also lodge a claim against a PCUB. It might be that you say your employer and or the PCUB should have prevented the harassment or they did not respond to it well.
Forms
To lodge a dispute, you need to complete the f75 form. and you can find it here https://www.fwc.gov.au/apply-resolve-sexual-harassment-dispute-form-f75. After you lodge a dispute, you will receive a phone call from the Fair Work Commission confirming that they have received your application. At this point, with your consent, your application will be sent to the people and/or employers named in your application.
The perpetrators and employer will have an opportunity to provide a written response to your application. This is also a FWC form, and this response will be sent to the FWC and then it will be sent to you.
Conciliation stage
At this stage, a confidential conciliation conference will be held. The way this conference is conducted will be a matter for the FWC member, however the member will contact you and ask you about your preferences and take care to keep all parties safe. This might mean that you won’t see the employer or perpetrator at the conciliation, and you will be in separate rooms for the entire period. It might mean that the conciliation conference is conducted on the telephone, or it might be that no conciliation conference is listed, and the matter is listed for a hearing. The FWC is taking steps to be victim centric and so your opinion and preference will be considered.
What can you ask for?
At the conciliation stage, you can make settlement offers based on what could be ordered if you were to go to a hearing and win. You can ask for
Hearing
If you dispute does not settle at conciliation, and all parties agree for it to stay at the FWC then your dispute will be listed for a hearing. This means that a member of the FWC will preside over a hearing about your dispute. A hearing will call for witness statements, submissions about how the law works and applies to the facts in your witness statement, and cross examination of both parties’ witnesses.
‘A stop sexual harassment order’ is intended to prevent any future harassment, while an application for the FWC to otherwise deal with the dispute is intended to remedy past harm caused by sexual harassment. You can make both a stop sexual harassment application and lodge a sexual harassment dispute at the same time.
Stop Sexual Harassment Claim
If you are still in employment and the sexual harassment continues, then you can make an Application in the Fair Work Commission (FWC) to ‘Stop Sexual Harassment’. The matter will be listed for a Conciliation where the parties will have the opportunity to negotiate an agreement facilitated by a conciliator.
If this conciliation is unsuccessful and the parties are unable to reach an agreement, there are two avenues to further pursue the claim:
These changes to the Fair Work Act 2009 (Cth) commence on 6 March 2023. It is important to note that conduct that has occurred before 6 March 2023 will not be covered unless the conduct is ongoing.
To file a Stop Sexual Harassment Application in the Fair Work Commission, you need to file a Form F72 in the Fair Work Commission. There is a fee of $77.80 to make this application, however, you can apply for a fee waiver if it would cause financial hardship.
To make a Stop Sexual Harassment Application, you will need to set out the following in your application:
Information on how to make this kind of application can be found on the Fair Work Website at the following links:
The following remedies are available if a matter proceeds to arbitration in the FWC:
A complaint form can be filled out online and submitted on the AHRC website. There is a 24 month timeframe from the date of sexual harassment to make a complaint in the AHRC. You should contact the Working Women’s Centre SA for legal advice on your particular matter.
A complaint form can be filled out online and submitted on the AHRC website. There is a 12-month timeframe from the date of sexual harassment to make a complaint in the EOC. You should contact the Working Women’s Centre SA for legal advice on your particular matter.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Why do we have 10 days paid family and domestic violence leave?
This leave is designed to support employees who need time off to deal with the impact of family and domestic violence, and to ensure that they can return to work with the necessary support.
It costs $18,000 on average to escape a violent relationship. From today, millions of workers across Australia can access 10 days paid leave, which is critical to accessing medical, legal, financial, emergency housing, safety planning, relocation and counselling services.
The introduction of 10 days paid family and domestic violence leave is a response to the need for better support for workers who are affected by family and domestic violence. The new laws recognize that dealing with such a situation can have a significant impact on an individual’s personal and professional life, and aim to provide financial security during a difficult time. This is an important step towards ensuring that working women have the necessary support to address family and domestic violence and to recover from its effects.
The laws aim to create a safer and more supportive workplace for all employees, and to promote gender equality in the workplace. The achievement of this landmark legislation is a testament to the tireless efforts of women’s organizations, trade unions and working women’s centres, who have campaigned tirelessly to secure better working conditions and protections for women in the workplace.
From 1st February 2023
Paid Family and Domestic Violence Leave for workers in Australia comprises of the following:
Full-time and Part-time Employees
Full-time and part-time employees can take paid family and domestic violence leave at their full pay rate for the hours they would have worked if they weren’t on leave.
Casual Employees
Casual employees will be paid at their full pay rate for the hours they were rostered to work in the period they took leave.
An employee’s full pay rate is their base rate plus any:
To apply for paid family and domestic violence leave, an employee should follow their employer’s usual process for applying for leave. They should provide their employer with written notice of the leave as soon as possible and advise the dates they intend to take the leave, or the period of leave if the dates are uncertain. It could be the case that you advise your employer after you start the leave. This is okay. You just need to advise your employer as soon as possible and the law understands that you can’t plan for a crisis.
In most case you do not need to provide evidence.
In regard to the evidence required, the employee does not need to provide any evidence of the family and domestic violence.
An employer can ask their employee for evidence to show that the employee needs to do something to deal with family and domestic violence and it’s not practical to do that outside their hours of work
However, if the employer reasonably requests evidence, the employee must provide evidence that would satisfy a reasonable person that they need to take the leave because of family and domestic violence. This could include, but is not limited to,
Communication with your employer
It is important for the employee to communicate openly with their employer about their need for the leave, and to provide any necessary information and evidence in a timely manner. Be clear with your employer about any delays and difficulties.
The employer must treat any information provided in relation to family and domestic violence as confidential.
Meaning of family and domestic violence
Under the new provisions, family and domestic violence means violent, threatening or other abusive behaviour by an employee’s close relative, a current or former intimate partner, or a member of their household that both:
A close relative is:
The NES sets out 11 minimum employment conditions that apply to all national system employees, including the right to take paid family and domestic violence leave.
The NES is a fundamental aspect of the Australian employment law framework and provides a safety net of fair and reasonable minimum terms and conditions of employment for all employees.
How does the National Employment Standards relate to Modern Awards?
The NES is incorporated into the terms of modern awards, which set out the minimum conditions of employment for specific industries or occupations. Modern awards provide a safety net of fair and reasonable minimum terms and conditions of employment for all employees covered by the award, in addition to the 11 minimum employment conditions set out in the NES.
For example, a modern award for the retail industry might include additional provisions for things like penalty rates, loadings, and allowances, as well as the 11 NES minimum conditions. In this way, modern awards build on the NES to provide more comprehensive and industry or sector specific minimum employment conditions for employees in a particular industry or occupation. The NES and modern awards together form the cornerstone of the Fair Work system in Australia and provide a strong foundation of employment rights and protections for all employees.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Please note that this is general information and may not be relevant to your particular matter.
This fact sheet sets out different options for making a formal complaint.
If you have been sexually harassed at work, we encourage you to call us and make an appointment to speak with one of our lawyers.
You are being sexually harassed if you face:
The concept for sexual harassment is broad. However, if you are feeling intimidated, humiliated, or offended by inappropriate sexual conduct in connection with the workplace, this is sexual harassment.[1]
Note: This can include a one-off statement or a profession of love, said to you or written to you.
[1] Sex Discrimination Act 1984 S 28A (1).
You may like to read our summaries of sexual harassment cases that have gone to court, to guide you on possible outcomes for different types of conduct.
There are two different Commissions in which you can lodge a complaint of sexual harassment – the Equal Opportunity Commission deals with complaints under South Australian legislation, and the Human Rights Commission deals with federal legislation.
It is important to seek advice on which Commission best suits your matter. Differences between the two jurisdictions include:
Call us and speak to one of our lawyers to discuss which jurisdiction is best for your particular circumstance. The two Commissions are summarised below.
The Equal Opportunity Commission is the South Australian jurisdiction and handles complaints made under State legislation, being the Equal Opportunity Act 1984 (SA).
You have 12 months to make a sexual harassment complaint in the Equal Opportunity Commission (EOC).[1] This complaint can be made by filling in and filing a form with the EOC.
https://www.equalopportunity.sa.gov.au/complaints/making-a-complaint
Once the EOC receives your complaint, they will assess it to see if it is covered by the Equal Opportunity Act 1984 (SA). They may seek further information from you, or the other party, before accepting or declining your complaint.
If your complaint is accepted, it will be allocated to a Conciliation Officer and will proceed to conciliation.
If it is declined by the Commission, you will receive a letter explaining the decision. Your complaint may be referred to the South Australian Civil and Administrative Tribunal.
For more information, see the Equal Opportunity Commission website:
https://www.equalopportunity.sa.gov.au/complaints/complaint-process
You can seek compensation in this jurisdiction.
You have 24 months to make a claim in the Australian Human Rights Commission (AHRC).[2] The complaint can be made via the online form or by filling in and filing the form below.
https://humanrights.gov.au/complaints/make-complaint
Once you have lodged your complaint, it will be assessed. The other party will receive a copy of your complaint. The Commission will investigate and/or conciliate your complaint.
If your complaint is terminated, you may be able to take your complaint to the Federal Circuit Court or the Federal Court of Australia. The application to the court must be made within 60 days of the date your complaint is terminated.
You can seek compensation in this jurisdiction.
Experiencing sexual harassment in the workplace can often lead to a psychological injury.
Read more about making a claim for worker’s compensation in our separate fact sheet:
Sexual Harassment – should I make a WC claim fact sheet
Your employer has a duty to make sure your workplace is safe. If you are experiencing sexual harassment in your workplace, and this has impacted on your mental health, you can make a complaint. This is known as a Psychological Risk Complaint.
It is important that you document your experiences, as you will need to provide specific details about the incidents that you have experienced in your complaint. This must include the date(s), time(s) and location(s) of the incident(s).
You cannot claim any compensation through this process
In November 2021, changes were made to the Fair Work Act 2009 (Cth) in response to the Respect@Work Report.
These changes were intended to create an accessible, fast moving, cost effective and informal way to address the increasing issue of sexual harassment in the workplace.
The Stop Sexual Harassment Order allows the Fair Work Commission to make an order under s789FC of the Fair Work Act 2009 (Cth).
If you are a worker who is being sexually harassed at work by a colleague, volunteer, or visitor to your workplace, you can make an application to the Fair Work Commission. As the purpose of the order is to prevent future instances of sexual harassment, it is an essential requirement that you are still employed at the time you make the application.
It is also important to note that a Stop Sexual Harassment Order cannot fire or dismiss a sexual harassment perpetrator or award you with any compensation.
To be eligible to make a Stop Sexual Harassment application you must be a worker in a ‘constitutionally covered business’.
To be considered a ‘constitutionally covered business’, the person or corporation must be either:
State public schools, foreign government ministries and some local government employers with incidental trading activities.
Detailed below are the stages to making a Stop Sexual Harassment Order application.
The correct form is Fair Work Commission Form F72. This can be accessed on the Fair Work Commission website.
https://www.fwc.gov.au/form/apply-stop-workplace-bullying-form-f72
A Stop Sexual Harassment Order cannot result in reinstatement or the payment of money (compensation). This course of action is for employees who are being sexually harassed at work and want to continue working, but do so in a safe environment, free from sexual harassment.
At this point the Case Management team will review your application. They will look at whether you’ve completed the application correctly and confirm whether you want to proceed with your application.
At this point the FWC will serve your employer, and the person you have named in the application with your application.
After your application has been served on your employer your matter will be allocated to a conciliation.
At this stage you and your employer will negotiate an outcome that you desire to continue your employment in a safe environment, free from sexual harassment.
If you resolve your matter at this stage, and there is no need to continue with a Stop Sexual Harassment Order, your matter will be considered resolved and it will discontinue.
If your matter is not resolved at conciliation, it will be assigned to a Member of the Commission for a conference. At this stage there will be an opportunity to negotiate to resolve the matter.
If the matter is not resolved at the conference stage, it will go to a hearing.
The hearing stage is more formal. It will give you and the other party the opportunity to present evidence on the matter.
The hearing will result with either your application being dismissed, or your application being determined.
A Stop Sexual Harassment Order will either be made, or the Commission will decline to make an order.
You can appeal this decision by leave of Full Bench.
You cannot claim any compensation through this process.
The Government has now legislated recommendations put forward in The Respect@Work Report. This report was based on a national inquiry into sexual harassment in Australian workplaces.
The Fair Work Act has been amended to include a prohibition on sexual harassment in connection with work. It increases protections for workers, including employees, work experience students, volunteers, future workers and anyone conducting a business or undertaking in the workplace. The protection won’t apply to sexual harassment of a worker that starts before 6 March 2023.
There is now also a positive duty on employers to prevent sexual harassment. A person or company will be liable for sexual harassment committed by one of their employees, or agents, unless they can prove that they took all reasonable steps to prevent it. You will also be able to make a joint application with other workers, for example, if one person at your workplace has harassed both you and your co-workers.
These changes include a new dispute resolution process which will allow the Fair Work Commission to deal with disputes through conciliation or mediation. If a dispute cannot be resolved, and the parties consent, the Commission can settle the dispute and make orders, including orders for compensation.
If the dispute cannot be resolved by the Commission, you will be able to pursue civil proceedings through to the Federal Court or Federal Circuit and Family Court of Australia, within 60 days of the Fair Work Commission issuing a certificate confirming that your matter has not been resolved.
These changes mean that you have the option to pursue a complaint of sexual harassment through the Fair Work Commission, as well as the AHRC and EOC jurisdictions. You also still have the existing option to pursue the Stop Sexual Harassment Order in the Fair Work Commission.
These new powers of the Fair Work Commission will come into effect on 6 March 2023.
[1] Equal Opportunity Act 1984 (SA) s 93(2).
[2] Australian Human Rights Commission Act 1986 (Cth) s 46PH.
[3] Sex Discrimination Act 1984 S 28A (1).
[4] Fair Work Act 2009 (Cth) s 789FC.
[5] Fair Work Commission, Orders to Stop Sexual Harassment Bench book, 11 October 2021, p 35
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
The climate of COVID19 has led to an increase in working from home due to public health orders. A frequent enquiry the Working Womens Centre receives is employees seeking advice on their right to continue working from home. For some, medical conditions or parental obligations means that it is more convenient to continue working from home.
Requesting to Work from Home
Employees may make a request to their employer for flexible working arrangements. This includes a request to work from home.
To be eligible in requesting a flexible working arrangement under the National Employment Standards, you must have been working for the employer for a period of 12 months.
If you are a casual worker, you must have been working for the employer for a period of 12 months on a regular and systematic basis and intend to continue working on this basis.
Please see the following draft template to make a request to your employer to work from home:
“[DATE]
Dear [MANAGER]
Re: Request for Flexible Working Arrangement | Working from Home
I am writing to request a flexible working arrangement as at [DATE] until [DATE].
As I have been employed by [BUSINESS NAME] for over 12 months, I am entitled to make this request pursuant to section 65 of the Fair Work Act 2009 (“the Act”).
My reason for this request is due to:
[DELETE INAPPLICABLE]
[SET OUT DETAILS OF REQUEST AND REASON FOR CHANGE].
[EXAMPLE: MY PARENTAL OBLIGATIONS MEAN I AM REQUIRED TO COLLECT MY CHILD FROM SCHOOL AT 3:30PM. THIS IS FACILITATED BY MY WORKING FROM HOME AS I AM ABLE TO DO THIS ON MY LUNCH BREAK]
Due to these circumstances, I am requesting to continue [OR] commence working from home at my current contracted hours [OR] at altered hours.
I look forward to your response within 21 days of receipt of this letter.
Kind Regards
[YOUR NAME]”
Should your employer’s request recent medical evidence in response to your request for flexible working arrangements, in some instances, this can be seen as a reasonable request.
Employees must follow lawful and reasonable directions given by their employers.
Failing to follow a lawful and reasonable direction can be grounds for a dismissal, providing appropriate disciplinary measures are followed. You should obtain legal advice on the specific nature of your employer’s request and any legal obligation you have to comply with a management direction.
Work Health and Safety when Working from Home
A Person Conducting a Business or Undertaking (PCBU) has a duty of care to ensure the health and safety of workers while at work. An employee has a duty to take reasonable care for their own health and safety, and to follow reasonable directions from management.
The employer’s duty to ensure the health and safety of workers extends to while employees are working from home. Given the current climate of COVID19 and the increase of working from home, it is important that workers are set up to work from home in a safe way.
Performing work from home can present new risks to health and safety. Potential concerns for health and safety that arise from working from home include:
Working Women’s Centre Recommendation
We strongly encourage employees to join their relevant Union for ongoing support and advice in relation to their employment rights.
To find your relevant union and join today, please see the following link:
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
When you are experiencing bullying, harassment or discrimination at work over a period of time, it can be difficult to keep track of exactly what happened and when, especially if your mental health is suffering. It helps to keep timely records of it all, so you don’t forget the details of what happened.
Your notes can be useful later if you wish to complain about the behaviour to your manager or HR person. It will also be good evidence to support a legal claim such as worker’s compensation, a Stop Bullying Order, or a complaint of sexual harassment in the Equal Opportunity Commission or Australian Human Rights Commission.
If you have experienced bullying or harassment during your work day (or night), take a moment to record what happened when you get home, or as soon as you can. You can send yourself an email or a text, or write it down with pen and paper in a diary.
Include as much detail as you can, especially the “who, what, where and when”. Include anyone who witnessed the behaviour, or anyone you spoke to about it. A structure is below to help you record all the important information.
Remember to keep a copy of any emails, texts, photos, or other records, that might be relevant to the harassment too.
Diary entry: 7 June 2022, 1:30am
Date of incident: 6 June 2022
Time: approx. 4pm
Place: In the storeroom at work
Who was there? Me, Josh, Maya and Mark the head chef
What happened? I was getting flour out the storeroom to start dinner prep and Chef came in, he said “just need some salt”. I don’t think he did, this is about the third time in the past couple of weeks he has made an excuse to go into the storeroom when I am in there. He brushed past me to the furthest shelf and put his hand on my waist as he went past, and whispered “it’s cosy in here isn’t it” in a sleazy way in my ear. I walked out and Josh could tell I was upset. He asked what happened but I didn’t want to say anything in case Chef heard. Maya was on shift tonight too, I told her what happened on our break at 9pm.
If you need advice about workplace bullying or sexual harassment, call your union or our Centre.
You might like to check out our other fact sheets on sexual harassment at work:
Young workers and sexual harassment – what are my rights?
Sexual Harassment at Work – Should you make a Workers Compensation claim?
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This webinar was presented by Nikki Candy, Lawyer at the Working Women’s Centre, and Commissioner Platt and Commissioner Hampton of the Fair Work Commission.
The Fair Work Commission (the Commission) is Australia’s workplace tribunal established under the Fair Work Act 2009 (Cth). The Commission comprises of Members (who conduct proceedings and make decisions) and staff (who assist the public, parties and provide services to the Members). They are based in each State and Territory. The Commission currently has three Members in South Australia.
The Commission deals with approximately 30,000 applications and 13,000 hearings and conferences per year. The great majority of these cases involve unrepresented parties, so the information, systems and processes of the Fair Work Commission are designed to be accessed by self-represented parties.
The Commissioners’ role is to conduct the conference or hearing regarding your matter.
Commissioners Platt and Hampton kindly agreed to share their Top 10 Tips on Self-Representing in the Fair Work Commission.
There are different options for filing a claim. Think about what outcomes do you want to achieve, and does the form of application enable that? For instance – consider whether you are eligible to apply for the kind of application you are considering.
The most common matters are:
Unfair dismissal claims – these claims consider whether your dismissal was harsh, unjust or unfair. You need to meet certain criteria to lodge – such as your length of service and type or pattern of employment.
General protections claims are about the reason why you are dismissed – for example, if you were dismissed for raising a workplace right, or because you were discriminated against.
[remember that there are only 21 days from the date of dismissal to file either claim involving dismissal – read our fact sheet on unfair dismissals here]
Secondly, consider what kind of outcome you are after. For example, monetary outcomes from general protections are higher but it is a long process to see this through to Court. Unfair dismissals have different limits on available compensation but generally are a more informal process. Consider how much time you want to invest in pursuing an outcome. Read some material, and get some advice.
Here are some common terms with which you should familiarise yourself.
Applicant – Who made the complaint (or started the proceeding) – This is normally you.
Respondent – Who the complaint is against – This is normally the employer
Commission Member – The independent Commissioner or Deputy President of the Fair Work Commission who will conduct the conference or hearing. Call them ‘Commissioner’ or ‘Deputy President’ unless they suggest otherwise.
Conciliator – There are two types of conciliators. Normally the first conciliation will be conducted by a staff member of the Commission, who often have legal training. Second conciliations (which are done if the first conciliation has failed, or if there is another reason such as a jurisdictional objection) may be conciliated by Member of the Commission. This is called a Member Assisted Conciliation.
Conciliation conference – Conciliations are an ‘off the record’ discussion where the Commission member normally tries to identify strengths and weakness of each party’s case, and considers what remedies might be awarded and then facilitates a discussion to try and get the parties to agree a basis to settle their differences without the time, cost and delay of a hearing.
Conciliations can be conducted on the phone or a Video Conference, and sometimes in person. No records are kept if the matter does not resolve. If a settlement is agreed it will normally be documented and/or recorded.
About 80% of cases settle by the end of conciliation.
Directions Hearing – This is normally conducted on the telephone and usually occurs after conciliation has failed. The purpose of the Directions Hearing is for the Commission Member to determine the date, length (based on number of witnesses) and mode of Hearing (phone, video conference or in person) and deadlines for you to lodge your material. Make sure you bring your diary with you.
This is also an opportunity for you to ask questions about the process or ask for a second Conciliation if you still think the matter could be resolved.
Directions – Directions are the instructions from the Commission Member. They are normally sent to you in writing by email. They set out important timelines and instructions for your matter. Read them carefully and make sure you comply, or you may be disadvantaged.
The Directions normally contain links to information sources that will assist you understand and/or prepare your case.
Member’s Associate – Each Member of the Commission has an assistant called a Member’s Associate. You can ring the Member’s Associate if you have questions; they regularly deal with questions from unrepresented parties, but cannot provide you with legal advice.
Conciliation is the opportunity for parties to resolve the matter. It is usually the first stage in most cases (although jurisdictional objections may be heard first in some cases).
Resolutions: By default, the agreement you reach in a conciliation is immediately a legally binding and enforceable contract.
The Commission Member has to determine what happened. They do that by looking at the evidence presented by both parties.
Evidence = You will be asked to present your evidence in a Statement of Evidence. This is a summary of the evidence that you, and anyone else that you bring, will give in support of your case.
Submissions – this is where you apply the law to your facts and say why you have been treated unfairly.
For further information on conciliations, read our Conciliation Conference Information fact sheet.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
National Employment Standards
The National Employment Standards (NES) are 11 minimum employment entitlements that have to be provided to all workers in the national workplace relations system. All workers in Australia are national workplace relations system workers unless they are self-employed or work for a government body. Australian workers, including visa holders, migrant workers, and Australian citizens are entitled to the same National Employment Standards.
National Employment Standards set out minimum entitlements in relation to the following:
You can find more information on each of the standards via this link: https://www.fairwork.gov.au/employment-conditions/national-employment-standards#nes-entitlements
When you start a new job, your employer is required by Australian workplace laws to provide you with a copy of a Fair Work Information Statement, which is a document with important information about your rights at work.
You can find the Fair Work Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/Fair-Work-Information-Statement.pdf
If you are a casual worker, your employer is also required to provide you with a copy of the Casual Employment Information Statement, which has important information about what it means to be a casual worker and how you can become a permanent worker.
You can find the Casual Employment Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/casual-employment-information-statement.pdf
It is important to check the requirements of your visa to confirm if you are allowed to work in Australia, and any conditions your visa may have. For example, some visas require minimum working hours to be completed each week, while some visas set a maximum of hours that can be worked each week. Regardless of what your visa requirements are, you are still entitled to the National Employment Standards.
You should contact a registered Migration Agent if you have questions about your visa conditions. The Office of the Migration Agents Registration Authority (OMARA) website has a list of registered Migration Agents at the following link:
https://portal.mara.gov.au/search-the-register-of-migration-agents/
You can check the working conditions of your visa at the following link: https://online.immi.gov.au/evo/firstParty?actionType=query
Migrant workers are at a higher risk of experiencing workplace exploitation. This is because of a number of factors including fear of loss of income, lack of knowledge about Australian workplace laws, and fear of possible immigration consequences if they report breaches of Australian workplace laws. Some high risk industries with high rates of migrant exploitation are construction, agriculture and hospitality.
Workplace exploitation involves employers not complying with the minimum legal entitlements of their workers. Some signs of workplace exploitation include the following:
Migrant workers are often concerned that they will lose their visa if they report their employer’s conduct when it falls below the National Employment Standards. The assurance protocol is an arrangement between the Department of Home affairs and the Fair Work Ombudsman (FWO) to support visa holders who approach the FWO for help if they have breached their work-related visa conditions because of workplace exploitation. This protocol was set up to encourage migrant workers to seek help when being exploited without the fear of their visa being cancelled.
The following Visa subclasses are eligible for the Assurance Protocol:
For more information on your rights as a Migrant Worker, please visit https://immi.homeaffairs.gov.au/visas/working-in-australia/work-rights-and-exploitation
For more information on Wage Theft, please visit:
https://wwcsa.org.au/campaigns/ending-wage-theft/
For more information about when it is appropriate for a worker to have or use their ABN in the workplace, please visit: How to spot a Sham Contract in a Job Advertisement. – Working Women’s Centre | Working Women’s Centre (wwcsa.org.au)
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Superannuation may not be very exciting or seem like something you need to think about now, but ensuring all your superannuation payments are correct could make a big difference when you retire. This factsheet will explain some of the basic rules around superannuation including how much you should get and when, and what you can do if you do not get paid all or some of your superannuation entitlements.
Superannuation (or ‘super’) is a compulsory system of placing a minimum percentage of your income into a superannuation fund which will become your retirement savings.
Most modern awards contain a superannuation clause requiring employers to make superannuation contributions to a superannuation fund for the benefit of an employee to avoid the employer having to pay the legislated superannuation guarantee charge.
Under superannuation legislation employees can choose their own superannuation fund.
You can nominate your chosen superannuation fund by completing the Superannuation Standard Choice Form and proving it to your employer. You can follow the link below to find the form on the Australian Tax Office website:
https://www.ato.gov.au/Forms/Superannuation-(super)-standard-choice-form/
Employers will have a default fund that they use if you do not choose your own superannuation fund.
The minimum superannuation you should currently be receiving is 10.5% of your ordinary time earnings (see below for an explanation of ordinary time earnings). It is scheduled to progressively increase to 12% by 2025.
Superannuation should be paid by your employer into your nominated fund at least quarterly (i.e. at least every three months). The current superannuation guarantee percentage is the minimum required by law. You may be entitled to a higher amount under a modern award or an enterprise agreement.
Employees can also make voluntary contributions to their superannuation to increase their savings.
Ordinary time earnings are the amounts you earn for your ordinary hours of work which include:
An employee’s ordinary hours are the normal hours they work. For a full-time worker, this may be 38 hours or a number of hours and for a part-time worker, this will be the agreed minimum hours as in an award or agreement.
If you can’t determine the normal hours of work the actual hours the employee works are their ordinary hours of work. For example, casual workers hours may vary and their ordinary hours are the hours they actually work.
However, payments received for working overtime are generally not considered ordinary time earnings and therefore do not attract a payment for superannuation.
Have a look at the example pay slip below:
You can see from Jenny’s pay slip above, that she received payment in this pay period for her ordinary hours, an allowance, and overtime.
She is paid $71.19 superannuation which is 10.5% of payments received for ordinary hours (i.e. $600) and the allowance (i.e. $78), totaling $749.19.
She has not received superannuation on the $300 payment for overtime hours worked.
You can see the 10.5% superannuation is calculated on her gross ordinary time earnings of $678 (i.e. before tax is taken out). Her superannuation has been calculated correctly this pay.
No. Previously, employees needed to earn at least $450 per month to attract superannuation payments.
However, there has been a change to the law and from 1 July 2022, employers will be required to make super guarantee contributions to their eligible employee’s super fund regardless of how much the employee is paid.
If employees are paid less than their minimum entitlements, including superannuation, they can make claims to be back paid.
The South Australian Employment Tribunal (SAET) is the jurisdiction to determine underpayment of wages and unpaid superannuation claims.
You can lodge a Money Claim for your unpaid superannuation. See their website for more information.
https://www.saet.sa.gov.au/industrial-and-employment/money-claims-monetary-claims/
It is also possible to report your employer to the Australia Tax Office (ATO) if they have not paid your superannuation. Here is a link to information about reporting your employer to the ATO:
https://www.ato.gov.au/calculators-and-tools/report-unpaid-super-contributions-from-my-employer/
Contact the Working Women’s Centre SA if you need advice about claiming outstanding superannuation entitlement.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
As an employee, you are legally entitled to request a copy of your employment records from your employer. This will assist in calculating any potential underpayment of wages or any leave entitlements owed to you.
Employers are legally required to retain all employment records for a period of 7 years. A failure to keep employee records or provide them upon request is a civil remedy provision and carries penalties of up to $66,600 per contravention for Companies.
Below is a draft template of a letter of demand to assist you in requesting employment records. Make sure to insert relevant information to your individual employment within the highlighted brackets.
“[DATE]
[ADDRESS OF BUSINESS]
Dear [NAME OF SUPERVISOR]
Request for Employee Records
I confirm my employment at [NAME OF BUSINESS] as [POSITION TITLE] for a period of [STATE PERIOD OF EMPLOYMENT/ END DATE IF NO LONGER EMPLOYED].
I am writing to request copies of my employment records. This includes all pay records, overtime records, leave records, superannuation contribution records and pay slips. I further request copies of my timebook/s detailing my hours worked.
Please provide all records prescribed in Regulations 3.32, 3.33, 3.34, 3.36, 3.37, 3.40, 3.45 and 3.46 of the Fair Work Regulations 2009 (Cth).
Pursuant to section 535(1) of the Fair Work Act 2009 (Cth) (“The Act”), your employer obligations are as follows:
“An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.”
Further, the Fair Work Regulations 2009 (Cth) regulation 3.42 sets out employer obligations in relation to inspection and copying of records.
“…an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.”
I look forward to receiving a copy of my employment records within 14 days of receipt of this letter.
Please note that failure to provide records is a breach of a civil remedy provision under the Fair Work Act 2009 (Cth). This breach carries a penalty of up to $66,600. If I do not receive my records in the requested timeframe, I will proceed to file a Pecuniary Penalty Application in the South Australian Employment Tribunal and seek that these penalties are paid.
Kind Regards
[YOUR NAME]”
If you do not receive a response from your employer, contact the Working Womens Centre on 8410 6499 to arrange an appointment to speak to one of our Lawyers. They will be able to provide further advice on your individual circumstances.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Different types of employment have different rights attached. Your employer should be clear about your type of employment; however, this does not always occur.
It is helpful to understand the difference between types to ensure you are receiving the correct entitlements and conditions by law.
There are four main types of employment that are found in the workforce. These include:
Permanent and casual workers have different entitlements. Casual workers are less likely to have regular hours each week and cannot be guaranteed a set number of hours of work. Whereas permanent workers receive the same number of hours each week. See below for further details on the different types of employment.
If you are working an average of 38 or more hours per week and/or have a signed contract (it is not a requirement to have a contract) you are a full-time employee.
With full-time employment, you are eligible for certain entitlements, minimum wages and conditions.
These include:
Another entitlement for full-time workers is that their employers must provide them with written notice when they decide to end the employment. A condition of full-time employment for the employer is that there must be a set maximum number of hours worked by an employee per week and generally it is 38 hours or more. However, this will be different depending on the industry and what award the work falls under.
An example of this is a hairdresser working under the Hair and Beauty Industry Award 2020 (‘the Award’). In a salon where business hours are Tuesday to Saturday, full-time employees are often required to work Saturdays. Under the Award a hairdresser is entitled to two consecutive days off each week or three consecutive days off in a fortnight. This means if they work every second Saturday, they will get Sunday, Monday and Tuesday off while still being a full-time employee.
A part-time employee will work less than 38 hours a week, where the hours are fixed each week and can be permanent or on a fixed-term contract.
The same benefits apply to part-time employees as they do to full-time employees but the amount of leave a part-time employee will be on a pro-rata basis.
This means that a part-time employee who works 19 hours per week will be entitled to 50% of a full-time employee, that is two weeks annual leave and 5 days personal leave per year.
Another type of employment for full-time or part-time workers, is that they hired on a fixed-term contract, unlike full-time permanent employees where they are employed on an on-going basis.
An example of fixed-term contracts, is that an employee can be given a 6 or 12-month contract and after that time their employment will finish. An employee may be a receptionist at a business and they are hired on a fixed-term contract basis for 12 months, working full-time. The employment will end after 12-months unless a new contract is provided.
The same entitlements and benefits of a full-time permanent employee apply to a fixed-term contract employee, including sick leave, annual leave, and minimum wage entitlements.
Casual employment is a type of employment that does not have a firm commitment to ongoing work.
Casual employees will not have set days or hours of work per week, as it changes to suit the employer’s needs.
If a casual work job offer has been made and the terms say it will not continue indefinitely and the offer is accepted by an employee knowing of the no advance commitment, it is likely to be a casual employment position.
Some indications that your employment is casual:
An example of a casual worker could be a hospitality worker at a restaurant. You are likely to be rostered a different number of shifts per week depending how busy the restaurant is. The employer of the restaurant will take down your availability of what days you can work each week and then you will be rostered on those days for the hours the employer chooses.
Entitlements of casual employment are found under the National Employment Standards;
Is it possible to change from having casual employment to being a permanent part-time or permanent full-time employee?
Casual conversion is the process of an employee converting their employment to be a part-time or full-time employee.
For more information on this, please see our fact sheet on: https://wwcsa.org.au/resources/casual-conversion/
In some cases, a business may engage you as an independent contractor when in fact you are an employee. This can be classified as “sham contracting.”
Businesses often do this to evade paying superannuation, base award rates, casual loadings or weekend penalty rates.
There are many factors that are considered to decide if you are a true independent contractor or in a sham contracting arrangement.
An example of “sham contracting” may be a cleaner hired by a cleaning business for cleaning duties but they are told they an independent contractor under a contract. The general rights of an independent contractor are they can negotiate their own fees/rate of pay and can negotiate their own working arrangements for hours they work. Often they would have their own cleaning business and have multiple places they clean at. However, it may be a sham contract if the employer decides the pay, where the person works and what hours they do, etc.
This can be a complicated legal matter and if you are in this situation please contact us for legal advice on your specific circumstances.
For more information on Sham Contracting, please see our fact sheet on: https://wwcsa.org.au/resources/how-to-spot-a-sham-contract-in-a-job-advertisement/
This book recommendation list is compiled by WWC staff and volunteers to guide you on what to read during the upcoming holiday if you want to learn and reflect more about feminism and worker’s rights!
Updated on 21 December 2021
Disclaimer: Please note that this is general information and should not be taken as legal advice. Working Women Centre SA doesn’t own the copyrights of the following books.
by Caroline Criado Perez
All about how data excludes women in day-to-day life. pretty dense but easy to understand/read, has a chapter exclusively on work.
by Elizabeth Wynhausen
Stories from an academic who went undercover in a number of ‘low-skilled’ jobs to see what life in that line of work was like.
by Kate Ellis
Former Australian politician Kate Ellis explores the good, the bad and the ugly of life as a woman in Australian politics.
by Koa Beck
About the knotted history of racism within women’s movements and feminist culture, past and present.
by Mikki Kendall
by Brit Bennett, Nicole Dennis-Benn and 15 others
by Margaret Atwood
by Cho Nam-Joo
A novel. The life story of one young woman born at the end of the twentieth century raises questions about endemic misogyny and institutional oppression.
by Rebecca Makkai
A novel following the AIDS crisis in Chicago. Love, community and activism. This story will stay with you for life.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Casual employment usually attracts a higher rate of pay. However, casual workers have no guarantee of ongoing work. They also miss out on important benefits such as paid sick leave and annual leave. For this reason, casual workers may want to convert their employment to part time or full time employment. This is called casual conversion.
Your employer must offer you part time or full time employment if:
The offer must be in writing and state if you are being offered part time or full time employment. If the regular pattern of hours that you worked is equivalent to full time hours, your employer must offer you full time employment. If the regular pattern of hours that you worked is less than the equivalent of full time hours, your employer must offer you part time employment that is consistent with the regular pattern of hours worked during that period.
Your employer must give you the written offer no later than 21 days after your 12-month anniversary of employment. You must respond to the offer in writing within 21 days of receiving the offer. If you do not respond, it will be assumed that you have declined the offer.
Small business employers (less than 15 employees) do not have to offer conversion to part time or full time employment. However, small business employees still have a right to make a request to be converted to part time or full time employment.
Your employer may decide not to offer you part time or full time employment if there are reasonable grounds to do so. Reasonable grounds not to offer part time or full time employment include the following:
If your employer decides not to offer you part time or full time employment, they must notify you in writing no later than 21 days after your 12-month anniversary of employment. The notice must include details of the reason you were not offered part time or full time employment.
If your employer does not offer you part time of full time employment within 21 days of your 12-month anniversary, you can make a request to convert your employment to part time or full time employment.
Small business employers (less than 15 employees) do not have to offer conversion to part time or full time employment. However, if you work for a small business, you can make a request to be converted to part time or full time employment any time after your 12-month anniversary of employment.
You have a right to request to convert to part time or full time employment if:
Your request should be in writing and should specify that you are requesting to convert to part time or full time employment. Your employer must respond within 21 days of receiving your request.
Your employer cannot refuse your request unless:
Once your employer grants your request or you accept an offer for part time or full time employment, your employer must discuss with you and provide written notice specifying:
If your employer refuses to convert your employment and you believe there are no reasonable grounds to do so, you can challenge their decision.
If you are covered by an Award or Enterprise Agreement then you need to complete a Form 10. It can be found here https://www.fwc.gov.au/awards-and-agreements/awards/interpret-or-enforce-award
If you are not covered by an Award or Enterprise Agreement then you need to complete a Form 10A Application for the Commission to deal with a dispute about casual conversion. This can be found on the Fair Work Commission’s website on this link: https://www.fwc.gov.au/documents/documents/forms/form-f10a.pdf
This form will need to be emailed to Fair Work Commission. If you are in South Australia, you can send the email to adelaide@fwc.gov.au.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
How to: Apply for a Flexible Working Arrangement?
A flexible working arrangement is an arrangement where you work in a different or flexible way than you usually would. It can include you starting and finishing work at different times, working shorter (or longer) hours or at a different location including working from home.
Am I eligible to apply for a flexible working arrangement?
Under the Fair Work Act you can make an application for a Flexible Working Arrangement if:
You also must have 12 months continuous service with the employer prior to making a request for a Flexible Working Arrangement.
If you are a casual employee, you can make the request if you have 12 months continuous service and that there is a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
How do I make the request?
The request must be made in writing and set out the details of the change and the reasons for the change. Use our template below to guide you.
[ Insert Date ]
[Insert your name ]
[Insert your contact details phone, email, address]
[Insert Job title]
Dear [Insert managers name]
Re: Request for flexible working arrangements
I would like to request a flexible work arrangement under section 65 of the Fair Work Act 2009 (the Act).
I am making this request because [insert choose from any of the applicable reasons in 1-6 above. You may have more than 1 reason to base your application on. For example: I am a parent/I am a carer/I have disability/etc ]
[You may want to note, how long you have been working for. For example:]
I have been working for this business for more than 12 months on a [full time/part-time or casual hours that are regular and systematic basis].
I would like to start working [insert details of the changes you want. For example: shorter hours, or on less days, or starting late or new equipment].
I would like this flexible working arrangement to commence from [insert date]
Any effect that this would have on the business and my colleagues can be accommodated by [insert details for the way in which it can be accommodated. Basically here you are anticipating why your boss may reject the request, and providing a solution in advance.]
It would be appreciated if you could respond to this request within 21 days in accordance with the Act.
I am more than willing to discuss this request at a time that is convenient to you. In addition, I am agreeable to discussing possible alternatives to make sure this arrangement can be suitable for both of us.
Thank you in advance.
[Insert your name]
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Sexual harassment in the workplace is an ongoing and increasingly publicised topic. More and more women contact our centre daily to seek advice in relation to the legal avenues that may be available to them to seek a remedy for the unacceptable and intolerable behaviour they have experienced in the workplace.
Once a victim has gained the courage to seek advice on their legal options, the next question that usually follows is how does someone quantify a monetary settlement for the behaviours and conduct that person has been subject to?
The following case studies are based on leading sexual harassment cases. They give a brief summary of the facts by looking at the conduct and behaviours a complainant has experienced, the findings of the court in relation to the said conduct and lastly the rulings and compensation awarded by the courts.
Ms Hill was awarded $170,000 in compensation for loss and damages.
Facts:
Ms Evans was awarded $30,000 in damages.
Ms Evans also claimed that Pasadena Foodland had breached its duty of vicarious liability and was responsible for Mr Crugnale’s behaviour because they had failed to appropriately implement/enforce their own sexual harassment policy.
Pasadena Foodland was found to be vicariously liable for Mr Crugnale’s conduct as they did not take reasonable steps to prevent Mr Cugnale’s behaviour. In was also found that Foodland failed to implement their own sexual harassment policy.
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2019/222.html
MS YELDA RECEIVED $200,000 IN COMPENSATION.
Ms Lee was awarded $100,000 in damages
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Thousands of workers have had to stop working due to the South Australian lockdown. If you have lost income, there are a few different types of financial relief available for workers. We have compiled the different payments available in one place.
Updated on 26 July 2021
Disclaimer: Please note that this is general information and should not be taken as legal or financial advice. We will do our best to keep this up to date, but if you believe there is something missing from this list, please contact reception@wwc.org.au
Before looking for financial relief, you should check to see whether you have any Paid Leave options available that apply to this situation. Look at your employment contract and/or your Award or Enterprise Agreement to see what you may be entitled to. Leave entitlements vary between employers and industries. If you are a full time or part time worker, you may consider taking Annual Leave. Some employers may have special paid COVID-19 leave. Depending on the type of work you do, you could also ask to work from home for the period of the lockdown.
If you aren’t sure what your options are, get in touch with your union or the Working Women’s Centre for advice.
This is a payment for workers impacted by the lockdown. If you live in or have visited a Commonwealth-declared COVID-19 hotspot, which includes the Adelaide Metropolitan area, you may be eligible for this payment. The South Australian government has also extended this payment to workers in regional SA.
You may be eligible to receive this payment if you are unable to work due to:
To receive this payment you must be 17 or older, and an Australian resident or a temporary visa holder who is legally able to work in Australia.
The payment amount is $1500 for every 14-day period of meeting the above eligibility criteria. Applications can be made over the phone.
This payment is for workers who have visited a declared exposure site and are required to self-isolate, and don’t have access to paid leave or income support. It is a once-off payment of $300, and you can find further information about eligibility and apply via an online form. Australian residents and temporary visa holders, including international students, can access this payment.
This is a one-off payment that can be received if you have to quarantine or self-isolate, or are caring for someone who has to do so, but it cannot be claimed if you are simply in lockdown.
You may be eligible for this payment if you are in severe financial hardship and are eligible to receive an income support payment or ABSTUDY Living Allowance. Further information here.
This $1000 grant is available for people working as sole traders who have been impacted by the lockdown. Only businesses with an annual turnover of $75,000 or more are eligible. See further eligibility requirements.
There are government income support payments (Centrelink payments) that might apply to your situation.
Payments include:
Payment amounts will depend on personal circumstances. Please go to Services Australia to find the different payments available, and full eligibility criteria. The Uniting Communities Law Centre can provide advice about eligibility for different Centrelink payments.
There are a number of organisations which may be able to assist with emergency financial assistance. You can find a list on the South Australian government website.
If you are a student at Flinders University in your second or later year of study and you are experiencing financial hardship, you might be eligible for a grant of $500. Grant applications will be open from the 26th of July 2021 to the 13th of August 2021.
If you are a student at University of South Australia, you can contact USASA to access free financial counselling services and get personalised financial advice. If you require urgent assistance, USASA may be able to assist you with accessing emergency food/financial support through the service.
If you are a sex worker who has been impacted by the lockdown, you may be able to access the Scarlett Alliance Emergency Relief Fund. Applications will be open to sex workers in South Australia on the 27th of July and applications are available in English, Chinese, Thai and Korean.
This emergency quick response grant through the Performers Support Fund of South Australia is offering food and fuel vouchers of up to $200 to actors and entertainment professionals who are experiencing financial hardship during Covid-19 in SA. You can fill in the application form online.
Due to a high number of applications, Red Cross is not accepting any new applications currently. Please keep an eye on their website for potential updates.
In a crisis, often communities spring to action to support each other. The Facebook group ‘Love your neighbour South Australia’ is a place where you can put in a request for assistance, such as in-kind support of food or supplies, from members of the community.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
COVID-19 is a safety risk for essential workers who are working during the lockdown. Your employer must ensure that you and others are safe. They must do what is ‘reasonably practicable’ to minimise the risk of catching or spreading COVID-19.
Managing the COVID-19 risk will look different for each workplace. For supermarkets and similar services, it is reasonable to expect your employer to be doing the following:
Note: these suggestions are based off Safe Work Australia information and the government requirement for masks in indoor public settings, except for schools and office buildings. There is more detailed information on COVID-19 safety for each industry at Safe Work Australia.
If you think customers are not following physical distancing, speak with your employer about it. They could take further steps to ensure people are distancing, such as monitoring behaviour or marking out the direction of traffic.
If people are finding it hard to distance, there may be too many people in the space. Your employer should consider reducing the number of people permitted in at a time.
If you think your employer is not doing enough to make sure everyone stays safe, there are a few things you can do.
People might be upset or stressed due to the lockdown, but it is never okay for them to act aggressively towards you as a worker. Strategies for dealing with aggression include:
SafeWork Australia has further information about this issue.
If you do not feel comfortable working during the lockdown, you will have to negotiate with your employer about taking some time off work.
If you are a casual worker, you have no obligation to work if you choose not to. However, we all know it can be difficult to negotiate as a casual because your employer could stop giving you shifts in the long run.
If you work part-time or full-time with set hours, you may need to request leave from your employer to take time off work. Get in touch with the Working Women’s Centre if you are unsure about your leave options.
If you are a vulnerable person (due to having a compromised immune system, for example) the risk to your wellbeing is higher, and so your employer should consider allowing you to take leave to manage the risk to your safety. To negotiate some time away from work, provide your employer with a medical certificate or medical evidence showing that you are a vulnerable person.
As an essential worker, you are likely to be placed under increased pressure during the lockdown. You may be working increased hours, in more stressful situations and dealing with the uncertainty of the situation. It’s important that you take care of yourself through this time.
Some strategies for looking after yourself include:
There are also a number of mental health support services available:
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Sexual harassment is conduct of a sexual nature that makes you feel offended, humiliated or intimidated, that a reasonable person would anticipate would make you feel that way.
Sexual harassment includes conduct like:
Your workplace should protect you from sexual harassment at work. This includes from co-workers, customers or clients. When starting a job, you should ask your employer about their workplace harassment policies. If you foresee any risks, for example, you are worried about being rostered on alone in a shop, discuss with your employer what can be done to ensure your safety at all times.
If you tell your employer that you have been sexually harassed, or they should have known that it was happening, they must stop the harassment and prevent it happening again. They are also vicariously responsible for the conduct of their staff (that is, legally responsible for their behaviour) unless they show that they have taken reasonable precautions to prevent sexual harassment and to properly deal with any complaints.
If you complain about sexual harassment, and then you have your shifts cut, or you are demoted or fired, you should call us for advice. You have a right to safe workplace and if you suffer a loss for making a complaint about that right, you could make a General Protections claim in the Fair Work Commission. Note that if you are fired, there are only 21 days from the end of your employment to make this claim.
You can also make a complaint to the Equal Opportunity Commission and Australian Human Rights Commission about the sexual harassment. There time limits of 12 months and 24 months respectively for these claims.
If you have been sexually harassed at work, firstly make sure you are safe and have support, and call us or your Union for legal advice about your individual situation.
Here are some common situations. Have a read and think about what you would do in these situations.
Even if a workplace has a culture of jokes and pranks, Mark’s jokes and comments are sexual harassment. Unwelcome touching, such as a shoulder rub, is also sexual harassment.
If Olivia feels too anxious or unwell to attend work, she should seek help from her doctor and with her doctor’s support, consider a worker’s compensation claim.
Olivia could see if any of her co-workers feel the same way about Mark’s behaviour and complain as a team. Olivia could arrange a meeting with Mark about his behaviour, with a support person, or could write an email to him outlining her concerns. If the workplace has a policy on workplace harassment, she should refer to it. Olivia has the right to a workplace free of sexual harassment and her concerns should be taken seriously. Once the workplace is notified of her complaint, they should take steps to prevent it happening again, even if the boss is the culprit.
Olivia could also lodge a claim in the Equal Opportunity Commission or the Australian Human Rights Commission about the sexual harassment.
If you are in a similar situation, call us or your Union for advice.
It is not okay that Anika feels unsafe at work. She has the right to a safe workplace. Anika should report the customer’s behaviour to her boss. If her boss knows about the harassment, he must act to stop it and prevent it from happening again. It doesn’t matter if the customer is a regular, a big spender or a friend of the boss.
Anika should put her complaint to her boss in writing, and keep a diary of when the customer harasses her. If at any time, Anika feels physically unsafe, she should seek immediate help. If Anika’s boss fails to do anything to stop the harassment, she could also lodge a complaint in the Equal Opportunity Commission or the Australian Human Rights Commission.
Even though this was a one-off event, it is still harassment. If Trina feels comfortable to do so, she could approach her co-worker and tell him that his behaviour made her feel uncomfortable.
If Trina doesn’t want to speak to her co-worker personally, she could approach her manager or HR department to report the behaviour.
If Trina chooses not to do anything at this stage, she should make a note of the time and date of the harassment and keep a diary if anything further happens, in case she wishes to take action in the future.
Even if you have had a previous relationship with someone at work, you do not have to put up with sexual harassment from that person. You may decide to try to speak to the person harassing you and explain that it is not appropriate in the workplace. If you don’t feel comfortable doing this, or if they won’t stop, you should report the harassment to your boss. Your boss should take your complaint seriously and take steps to prevent it from happening again.
Paige could make a complaint to the Equal Opportunity Commission or the Australian Human Rights Commission about the harassment. If her boss cuts her shifts instead of addressing Tom’s behaviour, she could make a General Protections claim in the Fair Work Commission.
If you have been sexually harassed at work, firstly make sure you are safe and have support, and call us or your Union for legal advice about your situation.
How can the Working Women’s Centre Help?
We can:
Where else can I go for help?
Other organisations that may be able to help include your union, the Australian Human Rights Commission and the Equal Opportunity Commission.
If you are not already a member of a union, ring SA Unions on (08) 8279 2222 to find out which union to join.
Australian Human Rights Commission: The Respect@Work Portal has resources for both employees and employers. Phone: 1300 369 711 Web: www.humanrights.gov.au
Equal Opportunity Commission: Phone: (08) 8207 1977 Web: www.eoc.sa.gov.au
Making a Sexual Harassment complaint is a serious matter.
Other service providers
If your life or someone else’s life is in immediate danger, phone 000 (triple zero).
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Generally, when employment comes to end, you will receive one final pay with your outstanding wages and entitlements. It can be confusing figuring out what your final pay should include. This fact sheet will explain the different kinds of payments you may be entitled to.
This fact sheet gives general information about minimum entitlements for South Australian residents. You may be entitled to different or higher payments depending on your employment contract, registered Enterprise Agreement or Award, and legislation applicable to your State or Territory.
You can find out what your final pay should include by looking at your Award, Enterprise Agreement or employment contract.
Your Award or contract might specify when your final pay should be made, but generally this should occur within 7 days of the end of your employment. You should be provided a pay slip within one working day of the payment being made.
Wages
You should receive your wages for hours you have worked, including any applicable penalty rates or allowances.
Annual leave
If you are a permanent employee, you should get paid out for any annual leave you have accrued, but not taken, including annual leave loading if applicable.
Your annual leave is generally paid out according to your base rate of pay. The base rate of pay doesn’t include any allowances, penalty rates, or bonuses.
Again, check your Award, agreement or contract as it may include a greater entitlement, for example, to your ordinary rate of pay.
If you work your notice period, your final payment should include the accrual of annual leave for this period. However if you are paid notice in lieu, instead of working your notice period, your annual leave will be calculated to your last day of work.
A notice period is the length of time that an employee or employer has to give to end employment. Not all employees have to give notice – for example, casual employees do not have to give notice when ending their employment.
Notice in lieu
If you and your employer have agreed that you don’t have to work your notice period, you should get paid the amount of notice you are entitled to under your contract or Award.
If you have resigned, and haven’t given correct notice, your employer could be entitled to withhold payment equivalent to the period you haven’t worked, or one week’s notice, depending on your Award, agreement or contract.
Pro-rata long service leave
If you have worked for more than 7 years for your employer, you may be entitled to be paid out your pro-rata long service leave.
This is calculated at 1.3 weeks per year of service.
If you have resigned and haven’t given correct notice, or if you have been terminated for serious and wilful misconduct, you are not entitled to payment for your pro-rata long service leave. (Check your local State or Territory legislation if you live outside of SA).
Long service leave
After you have completed 10 years of service, you are entitled to 13 weeks of long service leave. For each year you work over 10 years, you are entitled to a further 1.3 weeks.
Accrual for part time and casual workers
Accrual is the same as full time workers, however the payment is based on your ordinary hours worked per week. If your hours have varied, your payment is based on your average weekly hours over the previous 3 years of service.
You do not accrue long service leave during unpaid parental leave, or any other unpaid leave.
If you don’t believe your redundancy is genuine, contact us or your union for advice.
If you have been made redundant, you may also be entitled to a redundancy payment. Redundancy is paid in addition to notice in lieu.
A redundancy payment is based on your continuous period of service with your employer, and is paid at your base rate of pay for your ordinary hours of work.
Generally, periods of casual employment do not count toward your period of service, unless your Award of Agreement states otherwise.
The following redundancy payments generally apply:
| Period of continuous service | Redundancy pay |
| At least 1 year but less than 2 years | 4 weeks |
| At least 2 years but less than 3 years | 6 weeks |
| At least 3 years but less than 4 years | 7 weeks |
| At least 4 years but less than 5 years | 8 weeks |
| At least 5 years but less than 6 years | 10 weeks |
| At least 6 years but less than 7 years | 11 weeks |
| At least 7 years but less than 8 years | 13 weeks |
| At least 8 years but less than 9 years | 14 weeks |
| At least 9 years but less than 10 years | 16 weeks |
| At least 10 years | 12 weeks |
Make sure you check your Agreement to check for any greater entitlement.
You are not entitled to a redundancy if you your employment falls into the below categories:
You may also not be entitled to redundancy if your employment ends due to the “ordinary and customary turn over of labour”. This means that it is common and usual in your industry for employment to end this way. Call us or your union for further advice.
Sometimes redundancy payments are not payable by small businesses. A small business is defined by the number of employees (including yourself) at the time of the redundancy. A small business is a business of 15 or less employees. These 15 employees include
Check your Award or enterprise agreement to see if different redundancy provisions apply. If you’re unsure whether you have been paid the correct entitlement, or have other questions about the redundancy process, contact us or your Union for advice.
If you are owed money by your employer to reimburse you for expenses you have incurred, make sure you follow your employer’s procedures to have these claims finalised and paid to you in your final pay.
Personal leave
Sick leave or personal leave is not paid out, unless your contract or Agreement states otherwise.
Flex leave / time off in lieu
Check your contract or enterprise agreement for any entitlement to be paid out time you have accrued under a flex-time or time-off-in-lieu arrangement.
What about super?
Superannuation should be paid on any payment you receive in lieu of notice, as these are hours you would have worked and earned superannuation.
Superannuation is not payable on any payments for unused annual leave, sick leave or long service leave.
It is good practice to check that all other superannuation you are owed from your employment has been paid. Check your balance and all the ATO for more advice.
Firstly, discuss the issue with your employer, as it may just be a mistake or oversight. It is a good idea to write to your employer, so that you have evidence of the discussion.
If your employer does not respond or if you cannot agree with them about the amount owing, read our Fact Sheet on Underpayments [link] to find out how to formally write a letter of demand to your employer and, if the matter remains unresolved, lodge an underpayment claim in the South Australian Employment Tribunal.
Call us or get in touch with your Union for further advice on your situation.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This information is intended to assist with preparing and participating in conciliation conferences with the Fair Work Commission, South Australian Employment Tribunal, Equal Opportunity Commission, and the Australian Human Rights Commission.
Quitting your job is a big decision. It is very difficult to take back a resignation, so make sure that you are properly informed and comfortable with your decision before telling your workplace.
Read our “Should I resign? Important information to consider before handing in your resignation” factsheet first to make sure you are not limiting your workplace rights by resigning.
You will need to figure out if you need to give notice. The notice period starts the day after you tell your workplace you want to end your employment, and ends on your last working day.
Casual employees do not have to give notice. However, you may consider giving notice as a matter of courtesy, especially if you will be relying on a reference from the employer.
If you are a permanent employee, or on a contract, you will need to consider your obligations under either your Award or your employment contract. Notice periods are commonly one to four weeks depending on how long you have been employed for.
Check the Fair Work Ombudsman site to find your Award.
Usually, you will be required to work through your notice period. However, you can come to another arrangement by agreement with your employer.
What happens if I don’t give notice as required?
If you fail to give the correct period notice, your employer could be entitled to withhold from your final pay, a payment equivalent to what you would have earned had you worked the correct notice period. Other Awards state that the employer can only withhold one week’s wages in this situation.
Your employer also does not have to pay you out your pro-rata long service leave, if your employer considers you have terminated your employment unlawfully, by not giving proper notice.
Check your Award, agreement or employment contract for information about payments and allowable deductions upon the termination of your employment. Call us for further advice if needed.
Your employer can choose to end your employment during the notice period. They must provide you with the full period of notice, or payment in lieu of notice.
You may be eligible to file an unfair dismissal claim or general protections claim, if they have not followed their obligations under the Fair Work Act 2009, your Award or employment contract. Each situation differs so please call us for further advice on your specific circumstances.
You may wish to tell your employer you are resigning in person, over the phone or in text. However it is best to follow up in writing (via letter or email) so there is no dispute about the timing of your end of employment, for example, when your notice period starts and finishes.
The Fair Work Ombudsman has a template letter of resignation you can use.
Workplace access and property
Make sure you give back any workplace property you have in your possession eg keys, work laptop any information that is confidential. Likewise, you should be afforded a fair opportunity to collect any personal belongings you have in the workplace.
Consult your employment contract regarding any intellectual property clauses. Generally, you should not keep any information belonging to the employer. Call us for further advice.
Restraint of trade clauses
Sometimes employment contracts have “restraint of trade” clauses, which require to you refrain from working in your industry for a certain period of time, in a certain geographical area.
As a default, these clauses are often found by courts to be unlawful, as they restrict the rights of a person to pursue employment. However they will be found to be valid if the clause reasonably protects the interests of the business, and is not more onerous than necessary to do so.
That is, the clause will be valid if a court finds that your potential future employment in the region or time period specified will risk a loss of business to your current employer. For example, if you will be competing with the business by using confidential information or trade connections which you gained in the course of your employment.
What could be found to be “reasonable” to protect the interests of a business very much depends on your individual situation and the industry in which you work. Call us for further advice.
References
Employers do not have to give you a positive reference. If asked by a prospective employer about your service, they should state the truth. To give a falsely negative reference could be grounds to sue for defamation, if you can prove you suffered a loss due to the false statement.
If they do not agree to being a referee, or providing a written reference, you can ask for a statement of service. A statement of service is a simple letter stating the period of your employment, and your job title. You are allowed to request these details from your employment records (and others) under the Fair Work Regulations 2009.
Separation Certificates
You can request a Separation Certificate from your employer if you need it for Centrelink. They have 14 days to provide it to you. If you need further help, contact Services Australia.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This information is intended to assist with preparing and participating in conciliation conferences with the Fair Work Commission, South Australian Employment Tribunal, Equal Opportunity Commission, and the Australian Human Rights Commission.
Note: There is no requirement to be represented.
Note: You can have a support person with you during the conciliation conference. This could be a friend or family member. A support person may take notes on your behalf or help you if you feel overwhelmed.
Opening Statements: This is a summary of your application. The purpose of this statement is to put forward your case in a concise way at the beginning of the conference.
Another example of a guideline during a conciliation is that only one person may talk at a time. A conciliator will ensure the conversation remains polite and on topic.
What next?
Note: Parties are under no obligation to reach a settlement.
For more information, read our Top 10 Tips for Self-Representing in the Fair Work Commission fact sheet.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
When applying for a new job it is important to understand exactly what type of employment relationship you may be entering. There can be serious legal consequences if the employment relationship is incorrectly labelled. For example, some job advertisements might state the position available is for an independent contractor when the true nature of the position is really an employee. Independent contractors and employees have different obligations and rights in relation to the work they perform. It is important to know the difference between the two so you can ensure you are receiving all your legal entitlements and that you are complying with any legal obligations.
There are a number of factors that assist in determining the difference between an employee and an independent contractor. In general:
Independent Contractors work for themselves and are their own boss. They set their own fee for the work that they perform and have control of when and how they work. They usually create and supply invoices to receive payment for their work based on the completion of a job. Independent contractors arrange and pay their own taxation and are required to have an Australian Business Number (ABN).
Employees work for someone else and are not running their own business. The employer controls how, where, and when the employee does their work. Employees are often paid by the hour and receive a wage or salary. Employees are not required to pay their own taxation and their employer will deduct taxation and pay it to the Australian Taxation Office (ATO). Employees are entitled to certain types of leave (i.e. long service and parental leave) and superannuation.
Sometimes the true nature of the relationship will be obvious but sometimes a more fulsome analysis of all the circumstances of the working relationship is required.
It is important to note that no single indicator can determine if a person is a contractor or an employee. Each assessment is based on the individual circumstances of the work arrangement in place. Courts always look at the totality of the relationship between the parties when determining the status of a person’s working relationship.
Sham contracting is where a person working as an employee is told they are an independent contractor when they are not. They may be treated like an independent contractor in some ways, for example they may be required to have an ABN, yet have no control over when and how they do their work or how much they get paid.
It is illegal for employers to misrepresent an employee as an independent contractor. Sham contracting is against the law and there are protections for workers who find themselves in sham arrangements.
For example, it is unlawful for an employer to:
Sham contracting is sometimes done on purpose or an employer may have acted carelessly and not fully understood their obligations at law. Sham arrangements are sometimes set up by employers who are trying to avoid responsibility for paying legal entitlements due to employees such as annual leave or superannuation.
It is unlawful for an employer to pretend that they are offering a person a job as an independent contractor when the position actually involves entering into an employment contract. Before accepting a position like this, you should ask more questions about the true nature of the position and get some advice.
Have a read through these case studies for further guidance on how to spot a sham contracting arrangement:
Stevie was offered a job in a beauty salon as a Beauty Therapist. Stevie is qualified to provide a full range of beauty treatments. Stevie was told she needed an ABN and would need to arrange to pay her own tax. Stevie was told she would be paid $25 per hour and would be given four shifts per week. Her shift times were in line with the salon’s opening hours which were 9am to 5:30pm. She was given a uniform with the Beauty Salon’s logo which she was required to wear. Stevie was told to book and perform nail treatments only. The beauty salon owner told her she would need to bring in her own customers and generate patronage.
Stevie is an employee. She has no control over where, when and how she worked. Even though she was told she needed an ABN and was required to pay her own tax, she was not running her own business and had no control over her work. Stevie may be entitled to a higher rate or pay and superannuation.
Asma is an Electrician and performs work on a residential building site for a large building company called BuildPro. BuildPro engages Asma to wire the new house they have built. Asma gives Buildpro a quote for the job and says she will invoice BuildPro when the work is complete. BuildPro asks Asma to finish the job in three months. The job is too big for Asma to complete alone so she engages another worker to do the job with her. Asma has an ABN and has undertaken to work six days per week from 7am to 3pm to get the job finished.
Asma is an independent contractor. She determined her fee for the work and invoiced BuildPro accordingly. Although BuildPro requested the work be done within three months, Asma was able to determine her hours of work and was able to employ someone else to delegate work to. Asma is running her own business and had control over many aspects of the job which all indicate she was an independent contractor.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Who is an arts worker?
The term “arts workers” encompasses a hugely diverse range of workers. People working in the arts may be visual artists, they may work in the literary arts or the performing arts of dance, music, and theatre. There are even more types of workers when you consider all the roles supporting the arts including arts administration, production crews, ticket sellers, ushers, spruikers, and festival workers. The length of the list of arts workers is only confined to the limits of human creativity.
Working out your rights and entitlements in the arts can therefore be like finding your way in a labyrinth. Because of the diversity in the nature of work performed, there are many workplace laws that govern working in the arts.
Here are some questions and answers to common issues for arts workers.
Am I an employee?
Workers in the arts are commonly engaged as either employees or independent contractors. It is important to understand the nature of your engagement as a worker because there are different legal rights and obligations depending on the working relationship. For example, some workers are entitled to minimum rates of pay and leave, while others set their own pay and must organise their own leave arrangements.
How can you tell which is which?
Employees work in someone else’s business. The employer controls how, where and when they do their work, and pays them a wage or salary. Employees are entitled to superannuation and they have payroll tax deducted from their pay by their employer. Most employees are entitlement to minimum wages and conditions from an award.
Examples: Full-time arts administration worker, an usher at a theatre, casual sound engineer at a theatre company, or a food and beverage attendant in an outdoor bar at a festival or event.
Independent Contractors work for themselves and are their own boss. They are free to set their own fee for the work that they perform and have control of when and how they work. They should have an ABN, invoice for their work, and organise payment of their own taxation. They may invoice for completion of a job rather by the hour. There is no minimum rate an independent contractor can rely on, rather they set their rates according to the free-market.
Examples: a visual artist engaged to paint and complete two large murals, or a musician playing a three hour set at a particular event.
Sometimes the true nature of the relationship will be obvious but sometimes a more fulsome analysis of all the circumstances of the working relationship is required. There are a full range of factors to be considered in determining whether a worker is an employee or an independent contractor.
Some employers treat their workers as independent contractors when they are really employees. For example, the employer might require the workers to have an ABN and invoice for their work, yet they are paid by the hour and directed to work certain days and times at the employer’s discretion.
It is unlawful for an employer to misrepresent employment as an independent contracting arrangement. This is known as sham contracting and it is against the law.
If a worker is in a sham contracting arrangement, they may be entitled to claim unpaid wages, superannuation and leave entitlements, and the employer may be required to pay a penalty for breaking the law.
If you think you are in a sham contract arrangement you should contact the WWC for advice.
Where do employees find their minimum entitlements?
Awards or modern awards are legal documents that outline employees’ minimum pay rates and conditions.
There are more than 120 awards that cover most people who work in Australia. Awards apply to employers and employees depending on the industry or occupation they work in and the type of work they perform.
Here are some of the Awards that might apply to workers in the arts and some examples of the types of work they cover:
Amusement, Events and Recreation Award 2020:
Animal attendant, Ride attendant, Tour guide, Customer Service Officer, Meet and Greet/Concierge, Photography Attendant, Host/Presenter, Admissions/Entrance attendant, Usher, Ticket seller, Security Officer, Receptionist, Programme seller, Cashier
Broadcasting, Recorded Entertainment and Cinemas Award 2020:
Television Broadcasting, Radio Broadcasting, Cinema and film production, screen actors, Musicians for film and TV, Motion Picture Production, dancer, mime artist or puppeteer
Graphic Arts, Printing and Publishing Award 2020:
Creation of designs, concepts or layouts used in the advertising, marketing of commodities or services, commercial and industrial art including illustrations, borders, retouching of photographs, photographic reproportioning and lettering by hand
Live Performance Award 2020:
Producing, staging, audio/visual, presenting, performing, administration, programming, workshops, set and prop manufacture, operatic, orchestral, dance, erotic, revue, comedy, or musical performances; includes sale, service or preparation of food or drink; and selling tickets
Textile, Clothing, Footwear and Associated Industries Award 2020:
Fashion and Textile design
Travelling Shows Award 2020:
Travelling shows including the operation by an itinerant employer of any stand, fixture or structure for the purpose of providing amusement, food and/or recreation, carnival, rodeo, community event or festival
For a full list of all the moderns award and to access your award you can visit: https://www.fairwork.gov.au/awards-and-agreements/awards/list-of-awards
If you need help working out which award applies to the work you perform call the WWC.
Do I get breaks? How long should my shift be? – Common conditions in Awards
For specific information about your rights and entitlements you should find out the modern award that covers your employment. However, there are some common conditions within the awards that might apply to your work in the arts:
Breaks: Most awards stipulate that workers get a break after five hours. Some awards provide for paid breaks and others provide that breaks are unpaid. Some awards also provide for rest breaks as well as meal breaks.
Casual loadings: Most awards will provide a loading of 25% for casual workers to compensate them for not receiving sick leave, annual leave or paid public holidays.
Penalty rates: Most awards provide penalty rates which provides a higher hourly rate of pay for working unsociable hours like public holidays, late nights or early mornings and weekends.
Minimum engagement: Minimum engagement periods require that the minimum shift length must be a certain number of hours. The minimum engagement period is usually between two and four hours.
Overtime: Many awards provide that you get paid extra after working a certain number of hours in a day i.e. more than 10 hours in one shift.
We re-iterate that the conditions outline above are general and if you would like advice on your award entitlements contact the WWC.
What can I do if I’m being underpaid?
Claim the money back! There is no lawful basis for an employer to pay you less than the minimum wage in your award or contract.
You can calculate what is owed and request they pay you the difference between what you were actually paid and what the minimum entitlement should have been.
You have up to six years to follow-up wages owed to you as a result of wage theft. You can make a claim to the South Australian Employment Tribunal.
Our Industrial Officers can give you advice about claiming wages if you think you may be owed wages from a current or previous job. We also have other fact-sheets that can assist with drafting a letter of demand to your employer.
Sexual harassment in the arts is NOT OK!
The #Metoo Movement was born out of the art world and we know sexual harassment is a problem across the industry. The Media Arts Entertainment Alliance, the union that covers many arts workers in Australia, conducted a survey of sexual harassment, criminal misconduct, and bullying in the Australian live performance industry. The results showed that 40% of the respondents had experienced sexual harassment.
Sexual harassment is any unwelcome conduct of a sexual nature. If a reasonable person would anticipate that the behaviour might make you feel offended, humiliated, or intimidated, it may be sexual harassment.
Sexual harassment can include:
Sexual harassment does not have to be ongoing and can be one, single incident.
Some instances of sexual harassment can also be criminal offences, including physical or sexual assault.
Employers should have a policy for how to deal with sexual harassment in the workplace. It may involve a complaints process and an outline of how a complaint with be dealt with. Some workplaces may not have a policy and making a complaint of sexual harassment can be difficult. For example, making an internal compliant of sexual harassment may not be helpful in a small business, where the perpetrator is also the boss or the responsible for resolving complaints.
The Equal Opportunity Commission and the Australian Human Rights Commission can hear complaints about sexual harassment and victims can make claims for compensation.
The WWC Industrial Officers can give advice you further about sexual harassment in the workplace.
Random Questions from arts workers
Here are some RAQs (i.e. randomly asked questions) that we have received from people working in the arts:
Is it ok to be paid in tickets to shows, drinks, food, discounts, or other perks?
No. Additional perks are great, but these must be in addition to your minimum wages.
Can I have several jobs at the same time?
It is possible to work for different employers at the same time. However, some employers do not allow it, especially if the second job is for a competitor. They may have a policy prohibiting it. If that’s the case you should ask for permission before applying for that second job.
Is it ok to drink alcohol or take drugs at work?
No. Drinking alcohol or taking drugs at work can be characterised as gross misconduct and could result in termination of your employment, even if your supervisor or other staff are doing it and there is a culture condoning it. It is also a work health safety issue.
Is there are union for workers in the arts?
YES! The Media, Entertainments and Art Alliance (‘MEAA’) is the union that covers many workers in the arts sector. MEAA is the union for actors, entertainers, journalists and many more workers in the arts industry.
MEAA provides members with information on their workplace rights and advocacy to defend, promote and advance members’ rights at work.
MEAA membership also includes discounts plus benefits like journey insurance as well as professional development opportunities.
You can learn more about MEAA or join online here:
Contact the WWC for specific information and advice about your rights and entitlements at work.
Where can I get advice?
If you are a union member, call your union.
If you are not a union member, then please feel free to call the Working Women’s
Centre on: 08 8410 6499
or using our toll free number: 1800 652 697.
You can also submit an online enquiry on our website.
https://wwcsa.org.au/contact-us/
Please be aware that we may not be in a position to respond to your enquiry within 24 hour’s, but we will advise you of the waiting period when you first telephone or email us.
Listen to the recording of our panel event ‘Working in the Arts’ featuring arts workers based on Kaurna land.
Our Panelists:
Gemma Beale
Letisha Ackland
Emma Webb
You’ll also hear from an Industrial Officer from the Working Women’s Centre about how you can protect your workplace rights in the Arts.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Instructions
Do not include this first page of instructions in your letter of demand. Delete this section after reading it.
This letter sets out how to write a letter of demand for underpayment of wages, as well as annual leave or notice.
Insert details relevant to your underpayment in the highlighted sections, and delete the parts that aren’t relevant to your claim.
Send the letter to your employer via post or email and keep a record of when you sent it. The letter can be used as evidence to help your underpayment claim, as well as a claim for penalties, in the South Australian Employment Tribunal.
This is a template and might not cover the extent of your underpayment issue. That is, this template talks about very specific breaches and in your case, there might be other breaches that you need to allege.
This letter is a guide and should not be taken as legal advice.
[date]
[employer’s address or email]
Dear [name of owner of business]
RE: – Underpayment of wages
I write regarding my employment with [name of business]. I have been underpaid by you as follows:
[List the different types of underpayment. For example:
[Explain how you calculated these amounts. For example if you were paid at the incorrect classification under your Award:]
You did not pay me at the correct award rate. For the period of [start date] to [end date], you paid me [the rate you were paid] an hour. However I should have been paid at [classification level] of the [your Award], as my duties included [list the higher duties you performed]. The total amount owing for underpayment of wages is $XXXX.
[Example if you were underpaid notice or annual leave]
You also did not pay my [annual leave / notice] of [X number of] weeks. The total owing to me for annual leave is $XXXX. My entitlement to [ annual leave / notice ] can be found in the National Employment Standards.
The total amount that should have been paid to me was [$XXXX your correct total payment]. You paid me [$XXXX what you were actually paid]. There is a total amount of [$XXXXX amount of underpayment] owing to me.
I request that you make the total payment of [$XXXX amount of underpayment] to me within 14 days of this letter.
If I do not receive payment within that time, I put you on notice that I will be commencing proceedings for unpaid wages against in the South Australian Employment Tribunal (SAET) without further notice.
If I am forced to commence proceedings against you, I will be seeking an order from the SAET that you pay pecuniary penalties for your various breaches of the civil remedy provisions of the Fair Work Act 2009.
It is hoped that this will not be necessary, and I look forward to a quick and amicable settlement of the outstanding unpaid wages.
Regards,
[your name]
[your contact details]
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
What is sexual harassment?
Sexual harassment is unwelcome sexual behaviour where the victim feels offended, intimidated or humiliated, and it is reasonable in the circumstances to feel that way.
It has nothing to do with mutual attraction or friendship. If there is consent, it is not sexual harassment.
Sexual harassment is against the law. You do not have to put up with it.
Sexual harassment can take many forms:
Can sexual harassment be a criminal offence?
Forms of sexual harassment which may constitute criminal offences include:
These actions can be reported to the police.
What are the effects of sexual harassment?
Informal ways of dealing with harassment:
Formal ways of dealing with harassment:
Useful tips to consider if you are being sexually harassed in your workplace:
How can the Working Women’s Centre Help?
We can:
We have further fact sheets on sexual harassment to help to inform you about your options.
Where else can I go for help?
Other organisations that may be able to help include your union, the Australian Human Rights Commission and the Equal Opportunity Commission.
If you are not already a member of a union, ring SA Unions on (08) 8279 2222 to find out which union to join.
Australian Human Rights Commission: The Respect@Work Portal has many resources for both employees and employers. Phone: 1300 369 711 Web: www.humanrights.gov.au
Equal Opportunity Commission: Phone: (08) 8207 1977 Web: www.eoc.sa.gov.au
Making a Sexual Harassment complaint is a serious matter.
Other service providers
If your life or someone else’s life is in immediate danger, phone 000 (triple zero).
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
We often think about Workers Compensation claims as being claims for physical injuries. A construction worker with bad knees might spring to mind, a worker who types all day might have a compensable repetitive strain injury (RSI)condition or a landscaper might have a bad back.
It is important to remember that the South Australian workers compensation system (administered by an independent entity known as Return to Work SA) can also assist you if you are suffering from a psychological injury caused by sexual harassment in the workplace.
The South Australian workers compensation system is a no fault system. This means that you can be compensated for your injury regardless of whose fault it is. It can however be a long and traumatic process and we do encourage you to seek out support while you make a claim.
What is Sexual Harassment?
The Sex Discrimination Act 1984 defines sexual harassment as:
(1) A person sexually harasses another person (the person harassed ) if:
(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
Examples of sexual harrassment in the workplace
Sexual Harassment in the Workplace
Sexual harassment in the workplace continues to occur at unacceptable levels within Australian workplaces.
The latest Australian Human Rights Commission workplace sexual harassment survey, released in November 2022, has found that 1 in 3 workers had been sexually harassed at work in the previous five years.[1] This statistic has not changed since the previous survey in 2018.
In the 2017/2018 financial year, sexual harassment complaints to the South Australian Equal Opportunity Commission (EOC) were the second most prevalent. The 2017/2018 complaints were predominately from women but the Commission saw an increase in complaints from men too.
In 2016, the EOC was commissioned to deliver a report into sex discrimination and sexual harassment in the South Australian Police (SAPOL). In that report, the EOC found that 21% of women and 8% of men have experienced sexual harassment in the previous 5 years.
In December 2018, the Australian Council for Trade Unions (ACTU) released the findings from their 2018 survey into sexual harassment which found that 64% of women who responded to the survey had personally experienced sexual harassment in the workplace on one or more occasions. The survey also showed that 41.2% of those who had experienced sexual harassment did not disclose the sexual harassment to anyone. The ACTU survey elicited 9600 responses, a feat most statisticians wouldn’t sneeze at.
We could provide further statistics, at a local and international level but there is no need. It is well established that sexual harassment in the workplace is prevalent, has serious consequences for victims and workplaces, and seriously limits women’s equal participation in the workforce. This is why Sex Discrimination Commissioner, Kate Jenkins, led an enquiry into sexual harassment in the workplace and made 55 recommendations in the Respect @ Work Report.[2]
[1] The results of that survey can be found here: https://humanrights.gov.au/time-for-respect-2022
[2] Respect at Work: Sexual Harassment National Inquiry Report (2020) can be found online: https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexualharassment-national-inquiry-report-2020#Za70h
Has sexual harassment caused you to suffer a psychiatric injury?
The Return to Work Act 2014[3] (the law that underpins the SA workers compensation system) defines injury as either a physical or mental injury. A mental injury is described in the Return to Work Act 2014 as a psychiatric injury and this means an injury that is ‘pure mental harm.’
To be eligible for worker’s compensation, work needs to have been the significant contributing cause of the mental injury.
[3] Return to Work Act 2014 section 4.
Case study
Julie works as an administrative assistant at a busy real estate agency. Julie works with all of the real-estate agents but spends most of her time assisting Graham, the owner of the agency. At first, Julie really enjoyed working with Graham. Graham was kind and took time to explain things to her when she wasn’t sure. After 6 months of work, Graham began emailing Julie and asking her about her weekend and other personal questions. Julie would tell Graham that she had a nice weekend and would give general details about her life. Julie wasn’t too worried about these questions but did think it was strange that Graham had such an interest her life. Graham would also regularly ask Julie about her boyfriend and details about their relationship. Julie began to feel uncomfortable but didn’t feel as though she could say anything. One night, Julie stayed back on a Friday night to have work drinks with her colleagues. At the end of the night, Graham asked Julie whether she enjoys having sex with her boyfriend. Graham then grabbed Julie’s breasts and tried to kiss her. Julie froze and tried to pull away. Julie left the party and Graham sent her explicit text messages. Julie was too scared to go to work on Monday and thought about just quitting. Julie wasn’t sleeping or eating and she was having panic attacks when she thought about having to see Graham. Julie decided to see her doctor. Julie’s doctor diagnosed her with depression and anxiety.
Julie’s depression and anxiety was caused by her work and this injury could be classified as a psychiatric injury for the purposes of lodging a workers compensation claim.
Let’s break down what ‘psychiatric injury’ means
In the Working Women’s Centre’s experience, psychiatric injuries often include depression disorders, post-traumatic stress syndrome, anxiety disorders and adjustment disorders.
All of these disorders have a range of symptoms including but not limited to feeling sad, moody, low, hopeless, nervous and feeling elevated stress or worry. Sometimes in a sea of feelings it is also hard to pinpoint what you’re feeling and that’s okay. Beyond Blue have provided a helpful checklist to help you navigate your way through this.
Here is a link:
There are many reasons why you might be suffering a psychiatric injury, this fact sheet deals with psychiatric injuries caused by sexual harassment in the workplace.
It doesn’t take a rocket scientist to understand that if you’re suffering from a psychiatric illness, it is may affect your work. In many cases, a psychiatric illness might manifest in high absenteeism (sick days), effect productivity, or effect your ability to cope with your workload and workmates.
Like any work injury, our community recognises that if your psychiatric injury has been caused by work then you may need time off to recover, receive medical attention and consider rehabilitation options. This is why we have a worker’s compensation system to help workers recover and rehabilitate. If your psychiatric injury has been caused by sexual harassment in the workplace and it has caused you to require medical attention or time off work, then you should seriously consider making a worker’s compensation claim. If you broke your arm at work, would you think twice about making a claim? Probably not! Psychiatric injuries are just as legitimate and therefore just as compensable!
How to make a worker’s compensation claim? A step by step guide:
Interim Payments
[Section 32 of the Return to Work Act 2014]
You may be entitled to receive interim payments while you wait for your workers’ compensation claim to be processed. If you have waited more than 10 days for your claim to be determined you must be offered interim payments. It is important to note that if your claim is rejected you may need to pay this money back. The agency will need to recover payments via debt recovery, [section 201] and it is unlikely that this will occur.
The debt recovery process occurs in the Magistrates Court of South Australia, for debts less than $100,000.00 and in the District Court of South Australia for debts exceeding $100,000.00. If the claim is for $12,000 and under the claim will be considered a minor civil claim. At the minor civil claims stage, you cannot be represented by a lawyer.
Recent changes to workers compensation in South Australia do not affect claims relating to psychological injury.
What if the sexual harassment has aggravated my pre-existing mental health issue? Can I still make a claim?
If you have been suffering from a mental health condition and the sexual harassment in the workplace has aggravated the injury, you still may be entitled to workers compensation for the aggravation. That is because the Return Work Act 2014 defines an injury that includes an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury.[4]
[4] Return To Work Act 2014 section 4.
Important Extras to Remember
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
When we get into the festive season at the end of the year, it is important for employers to stay vigilant and aware of their duty of care when it comes to end-of-year gatherings and the work Christmas party.
We have created this guide for employers to assist in preventing and addressing incidents of sexual harassment at work parties, in particular Christmas parties.
Disturbingly, each year from 1 December, the Working Women’s Centre SA expects to hear countless stories from women complaining of incidents of sexual harassment occurring at their staff Christmas Parties.
Every year we prepare ourselves to assist women who have been the victims of unwanted and unwelcome sexual behaviours at the workplace Christmas parties ranging from offensive and vulgar remarks to violent sexual assaults.
Of course, sexual harassment does not just happen at Christmas parties. Sexual harassment in the workplace is at epidemic levels within Australian workplaces. In 2018, the Australian Human Rights Commission released its workplace sexual harassment survey and found that 1 in 3 workers had been sexually harassed at work in the previous five years.[1] You only have to skim the surface of #metoo stories to know that the workplace can be a very unsafe place for women.
Having identified this trend, we have put together this guide to assist employers in planning a safe and truly celebratory event.
When planning the Christmas party, employers should not lose sight of their overarching primary duty of care to ensure the health and safety of all workers.[2] Employers are required to take their legal obligations to their workers as seriously as on any other day of the year.
The Christmas party might be off-site, and if you’re a half-decent party planner, the party might not even feel like work. Don’t let the good vibes lull you into a false sense of security, all employers have a legal obligation to take all reasonable steps to minimize the risk of sexual harassment,[3] and this obligation extends to workplace Christmas parties. In some instances, an employer’s obligations can
extend to the ‘after-party’ too.
[2] Section 19 Work Health and Safety Act 2012.
[3] Section 106 Sex Discrimination Act 1984.
*We recognise that men are also victims of sexual harassment. We have chosen to use gendered language due to the overwhelming statistical evidence that women are more likely to be the victims of sexual harassment and men the perpetrators.
Learn more about how to address and prevent sexual harassment
There are further resources available for both employees and employers on the Respect@Work Portal.
If you have an issue with sexual harassment in your workplace, and need assistance please contact us or your union.
If you are interested in further training and educational resources on preventing and addressing sexual harassment, please refer to our training page, and fill out an online enquiry form.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
What is wage theft?
Wage theft is the failure of an employer to pay a worker their wages or entitlements, such as superannuation, penalty rates, loadings or allowances under workplace laws. It impacts up to 170,000 South Australian workers and collectively costs more than $500 million a year.
Findings from “The Economic Impact of Wage Theft in South Australia” published by The McKell Institute, in March 2019.
If you feel your current or former employer has underpaid you by:
Then you may be able to lodge a Money Claim in the South Australian Employment Tribunal
(SAET). You may also be able to lodge a small claim in the Fair Work Division in the Federal Circuit Court.
You have six years from the date of the underpayment to make a claim.
Part 1: Figuring out what you are owed
You will need to find out the wage to which you are legally entitled. This will either be set out in a Modern Award, in your contract of employment or in an enterprise bargaining agreement. These are explained below. All employees, as a minimum, are entitled to the National Employment Standards.
The National Employment Standards set out the 10 minimum employment entitlements that must be provided to all employees, including the national minimum wage, and other entitlements such as leave, and flexible working arrangements. Casuals and permanent employees have different entitlements. Find out more on the Fair Work Ombudsman website:
https://www.fairwork.gov.au/employee-entitlements/national-employment-standards
Modern awards
Most employees are covered by an award. There are 122 modern awards in Australia. An award is a legal document that sets out the minimum pay rates and conditions of employment for an industry. Awards are not specific to your employer but rather specific to your industry/sector. The Fair Work Commission sets the conditions and rates found in the modern awards. The Fair Work Commission reviews all 122 awards every 4 years. Different awards apply for different industries and job types.
You can find your award and your correct pay rate on the Fair Work Ombudsman site:
https://calculate.fairwork.gov.au/findyouraward
If you are unsure if the award applies to you, check the coverage clause (usually clause 4)
and the job classifications (usually in the pay clause or a schedule) to read more about the
types and levels of jobs it covers.
All awards are available in full on the Fair Work Commission website.
Enterprise Agreements
Enterprise bargaining agreements (EBA), and other registered agreements such as individual flexibility arrangements, are negotiated between employees, employers and most often unions. They set out minimum employment conditions for employees of an employer. The law says that an EBA must leave an employee better off overall when compared to the relevant award. EBAs are voted on by the workforce and there should be a copy of your EBA made available to you, if one applies.
If your workplace has an EBA, you should check it first to find the wage to which you are entitled. Some agreements state that the award doesn’t apply, and provide better entitlements than the award. The base pay rate in the agreement can’t be less than the base pay rate in the award and the National Employment Standards still apply.
Other agreements may say that the award applies, where the agreement does not include detail about your entitlements. In this case, refer to your award.
Find your agreement on the Fair Work Commission site. https://www.fwc.gov.au/search/document/agreement
How to calculate your underpayment
Examine your payslips or other records (like rosters, bank statements, cash receipts) to figure out how much you were paid, and how much you should have been paid for the hours you worked under the award or your workplace’s registered agreement. The difference in these two figures is the amount you can claim as an underpayment.
You may find it helpful to use an Excel spreadsheet or table to calculate the underpayment per pay period. If you do not have full records of your hours worked, you can use a reasonable estimate.
Remember that you can claim other unpaid entitlements, such as superannuation, annual leave, long service leave, and notice. If you are claiming unpaid wages, you can add superannuation of 10.5% (or the amount listed in your registered agreement) of the underpayment amount to your claim.
Your underpayment is calculated as follows: (legal entitlement) minus (actual wages paid) = (underpayment figure).
Case Study
Phuong’s underpayment
*This case study is fictional, and is not based on a real person or business.*
Phuong is a permanent part-time employee in a restaurant. She works 20 hours a week. She is paid $15 per hour.
Phuong’s duties include taking reservations, mixing and serving alcoholic drinks, waiting on tables and helping to supervise junior staff. She examines the Restaurant Industry Award 2010, and realises that her duties are classified at “Level 3 – food and beverage attendant”. Under the Award, she should have been paid at $26.93 per hour during the day, $32.31 per hour on Saturdays and $37.70 per hour on Sundays and public holidays.
She goes through her payslips and her time sheets and calculates that over the period of her employment, she was paid $15,600. However, if she had been paid at the correct award rates, she should have been paid $26,603.
Phuong’s underpayment of wages is $26,600 (legal entitlement) minus $15,600 (actual wages paid) = $11,000 (underpayment figure).
She adds an additional 10.5% ($1155) of this amount to her claim as unpaid superannuation.
Other entitlements
When Phuong was fired, she was not paid out her annual leave or given notice. She is owed 3 week’s annual leave and should have been paid one week’s notice. She adds an amount for annual leave ($1534) plus notice ($511.60) to her claim.
Total underpayment Phuong adds up these amounts to calculate the total amount she can claim as an underpayment.
Her total underpayment is:
Unpaid wages: $11,000
Unpaid superannuation: $1155
Unpaid annual leave: $1534
Unpaid notice: $511.60
TOTAL: $14200.60
Part 2: Negotiating with your employer
If you have not already raised the underpayment with your employer, you should do so. If your employer is cooperative, this is the easiest way to rectify the underpayment.
If your employer refuses to pay you what is owed, you should formally request that the money be paid in writing. This is called a letter of demand. By putting the employer on notice that you intend to pursue the underpayment through the relevant tribunal (SAET) or court (Federal Circuit Court) they don’t pay, they may be liable to pay additional penalties if your claim does not settle.
An example letter of demand is set out below. This letter of demand threatens a claim in the SAET. List the amounts you are owed and explain why you think you are owed these amounts, with reference to the correct rate. You can attach your calculations to show how you arrived at the underpayment figure.
Letter example
Dear Mr Boss,
I write regarding my employment with your business. I have been underpaid by you as follows:
1. Underpayment of wages: $11,000
2. Underpayment of superannuation: $1155
3. Unpaid annual leave: $1534
4. Unpaid notice: $511.60
You did not pay me at the correct award rate. For the period of 1 July 2019 to 30 June 2020, you paid me $15 an hour. However I should have been paid at Level 3 of the Restaurant Industry Award 2010, as my duties included working in the bar serving alcohol, and helping to train and supervise junior staff. The total amount owing for underpayment of wages is $11,000.
When you dismissed me on 30 June 2020, you did not pay me notice. You owe me one weeks’ notice which is $511.60. My entitlement to notice can be found in the National Employment Standards.
You also did not pay out my annual leave of 3 weeks. The total owing to me for annual leave is $1534. My entitlement to annual leave can be found in the National Employment Standards. The total amount that should have been paid to me was $29,690.
You paid me $15,600. There is a total amount of $14200.60 owing to me. I request that you make the total payment of $14,200.60 to me within 14 days of this letter.
If I do not receive payment within that time, I put you on notice that I will be commencing proceedings for unpaid wages against in the South Australian Employment Tribunal (SAET) without further notice.
If I am forced to commence proceedings against you, I will be seeking an order from the SAET that you pay pecuniary penalties for your various breaches of the civil remedy provisions of the Fair Work Act.
It is hoped that this will not be necessary, and I look forward to a quick and amicable settlement of the outstanding unpaid wages.
Regards,
Phuong
Part 3: Lodging a Money Claim
If the employer does not pay by the date set out in the letter, you should lodge a claim.
There are two places which can deal with an employee’s claim to underpayment of wages.
The South Australian Employment Tribunal (SAET) is South Australia’s forum for resolving underpayment of wages, and other work-related issues.
You can lodge a Money Claim for your underpayment. See their website for more information.
https://www.saet.sa.gov.au/industrial-and-employment/money-claims-monetary-claims/
In some circumstances, you may instead wish to lodge a small claim in the Federal Circuit Court. The Federal Circuit Court also has the power to deal with these disputes. If your claim is under $20,000, and you wish to claim money against the director personally as well as the business, you can consider lodging a small claim in the Fair Work Division of the Federal Circuit Court.
Seek advice from us or a lawyer if you are considering taking this option.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Your employer may request you attend a disciplinary meeting to discuss allegations of misconduct or performance concerns. This is a reasonable and lawful directive; however, your employer needs to ensure they follow procedural fairness.
The toolkit below may assist you in navigating the process. If you have been called to attend a disciplinary meeting, you should take the following steps immediately:
Remember, your employer should provide you with at least 24 hours notice of a disciplinary meeting.
I have been stood down with pay, what does this mean & how long does this last?Your employer may stand you down with pay when they are investigating allegations concerning your performance or conduct. This does not mean your employer has decided to terminate your employment. Some workplaces have policies where they remove a person from the workplace while investigating allegations in order to prevent interference in the process and to minimise stress.
The stand-down period typically lasts until the investigation is finalised, and usually finishes when you are delivered with an outcome. It is important that you remain available to attend a disciplinary meeting during the stand-down period.
Can I reschedule a meeting?
It is not unreasonable to request a meeting be rescheduled if it falls on your rostered day off, outside of your working hours or if you are unwell and unable to attend. If you require more time to source a support person, this must be communicated as the reason why you are requesting to reschedule the meeting.
An employer may not agree to delay the meeting if they have already provided you with enough notice, or the allegations are very serious. If you are unwell and you cannot attend the disciplinary meeting, it is important that you obtain medical certificates and provide them to your employer.
Case Study:
Sarah works the night shift from 5:00pm to 5:00am. She is provided with a letter of allegation before her shift at 5:00pm, and requested to attend a meeting at 4:30pm the next day. Sarah is unable to contact a support person during her shift, and when she arrives home, must balance sleeping with calling a friend. Her friend is also unable to take time off from work on such short notice. Given Sarah’s circumstances, it would be unreasonable if her employer were to deny a request to postpone the meeting so that she can organise a support person.
What if my boss calls me in to talk but denies it is a disciplinary meeting?
Sometimes, employers call workers in for meetings but do not expressly use terms such as ‘disciplinary meeting’ or ‘allegations’. A useful way to find out whether a meeting is disciplinary in nature is to ask whether the meeting will have a disciplinary outcome. If your employer says it might, suggests they will let the Human Resources (sometimes called People and Culture) department decide or cannot give you a clear answer – there is a good chance you have been called into a disciplinary meeting. It is a good idea to treat it as such and take all the necessary precautions.
There is a list of allegations – How do I deal with them?
A disciplinary meeting is often held because allegations of misconduct have been raised with management. Your employer should provide you with clear allegations, preferably in writing to avoid misinterpretation. If the allegations are vague, you are entitled to request specific details such as the date and time of the alleged conduct, the nature of the conduct as well as which policies you are alleged to have breached. Generally, it is a good idea to ask for the allegations to be put in writing. This is best practice, but it will depend on the circumstances whether your employer will put the allegations in writing.
Case Study
Lin’s manager approaches her at work on Monday morning and asks her come into the office for a short chat. Lin finds out her manager is trying to hold a disciplinary meeting without any notice. Lin advises she will hear the allegations however will need sufficient notice to be able to respond and organise a support person. Lin’s manager schedules a meeting for the next day and provides her with the allegations in writing.
What happens in a disciplinary meeting?
Usually, your employer will read out the allegations and provide any additional evidence to you. They will then ask that you provide a response to the allegations. It is important that you hear all of the allegations before you respond.
What can my support person do?
Your support person can take notes and discuss the allegations privately with you. If you become overwhelmed and have trouble responding, a support person can clarify your responses for you. A support person’s role does not extend to answering the questions on your behalf.
You are entitled to respond to the allegations raised and your employer must consider your responses when determining the outcome of the meeting.
When considering your responses to allegations, ensure you provide clear answers and only address the allegations raised. You can request your employer view CCTV footage if you believe it supports your responses. If your employer has mentioned reviewing CCTV footage, you can also request to view this before responding to allegations.
Some employers prefer written responses to allegations. Similarly, to the above, make sure you respond clearly and concisely.
It is also good to highlight a record of good behaviour or raise any mitigating circumstances which may have led to the incident in question.
It is important to respond honestly to allegations. It may be unreasonable for your employer to terminate you if you were late once, however they can dismiss you for serious and wilful misconduct if you behave dishonestly and lie.
You can request a short break in the meeting if you need to discuss the allegations privately with your support person, or if you become overwhelmed.
If you have grievances to raise about workloads or other matters, it is best to address these separately and independent to this process.
What if my boss raises other matters & allegations that I didn’t know about?
Your boss should stick to the allegations in the letter sent to you, or the allegations listed at the beginning of the meeting. If they raise anything else, you can politely flag that this was not brought to your attention and you will be unable to respond without further details.
Can my boss ask me vague questions?
Generally, your boss should ask specific questions instead of vague questions with open-ended answers.
Case Study
Priya is at a disciplinary meeting with her union support person, and knows only that the allegations concern a breach of company policy on acceptable standards of behaviour. Priya’s boss asks her to ‘take him through what happened on Tuesday’ and asks what she did at work that day. This is an unreasonable question because it could risk Priya further incriminating herself, and does not enable her to address any specific allegation. Priya’s support person reminds her boss that the question is very open-ended and that she is entitled to know the allegations before offering any response. Priya’s boss reconsiders his approach and provides her with the allegation of speaking rudely to a staff member, and asks her whether she interacted with her during her shift.
What will the outcome of the meeting be? Will I be fired?
A common myth is the ‘three strikes and you’re out!’ principle. There is no requirement for an employer to give three warnings before dismissing a worker, and similarly, there is nothing preventing an employer from issuing more than three warnings.
Each employer has a different approach to determining disciplinary outcomes. It is best practice for an employer to have a clearly defined disciplinary process to ensure both the employer and employee are aware of the processes in place when issues in the workplace emerge.
Employers may issue informal counselling for minor issues, and this outcome is similar to a verbal warning. Other employers operate on a written warning basis. You can dispute a written warning by writing to your employer, however this does not compel them to remove the warning from your file.
I have been asked to “show cause” – what is this?
Your employer may issue you with a show cause letter following a disciplinary meeting. This is common where the allegations are serious enough to warrant summary dismissal.
A show cause letter requires you to provide compelling reasons as to why your employment should not be terminated. This is usually provided once an investigation has been carried out and when you have provided a response to the allegations. This is a serious step and requires consideration when responding. It is important to draw on a record of good work performance and as well as any mitigating circumstances the employer should consider when determining the fate of your employment.
A show cause opportunity is an important step for the employer to take prior to terminating an employee, and if you have been refused an opportunity to show cause, it is important you contact the Working Women’s Centre as soon as possible.
I have been told that I will be placed on a performance improvement plan – what is it and what do I do?
If your employer has concerns about your performance, they may choose to issue you with a Performance Improvement Plan (PIP). This is a structured plan which aims at providing you with the support and training needed to successfully do your job, and should have clear performance metrics in place. For example, it would be unreasonable if one of the outcomes was to ‘be friendlier to colleagues’ because there is no tangible way to measure this. It would be reasonable if your employer required you to achieve a particular target which can be measured and examined.
You can request amendments to the plan in consultation with your employer and request further training if needed.
It is also important that your PIP includes catch-ups with your boss or manager – these should be a regular opportunity to discuss progress and any additional support you may need.
I don’t agree with the PIP – can I just ignore it?
It is very important that you follow your PIP – even if you disagree with the content. You can dispute your plan and work with your employer to change it to better reflect working conditions. The important thing is that you comply with the requirements.
If you have been asked to respond to a letter of allegations, refer to our Template for how to respond to a letter of allegations Fact Sheet.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
This is a strict time frame. You should ensure that you make the application within 21 days (that is 21 calendar days). The first day of the 21 days, is the day after your dismissal.
We are committed to providing advice that you can rely on however the information in this toolkit is general in nature. If you’re unsure about how it applies to your situation you can call your union.
To find out more about unions, please visit www.actu.org.au
If you are not a union member, then call us on 08 8410 6499.
You have been unfairly dismissed if:
You will not be dismissed if you were engaged by a contract of employment for a specific time period, or for a specific task or season.
For example, if you were employed on a 12 month contract and at the end of this 12 month contract, you are not offered a new contract, that decision will not constitute a dismissal.
Courtesy of the Fair Work Ombudsman.
In deciding whether a dismissal was unfair, the Fair Work Commission (FWC) will consider specific criteria for the harshness of the dismissal. The FWC will take into account:
If you are employed by a small business, then your dismissal will be considered with respect to the Small Business Code.
Definition: A small business is defined as an employer, who employs less than 15 employees.
If you have been dismissed by a Small Business then the Fair Dismissal Code applies. The Code can be found here:
https://www.fwc.gov.au/about-us/legislation-regulations/small-business-fairdismissal-code
You will not be eligible to lodge an unfair dismissal case if you were dismissed because of a genuine redundancy.
Redundancy can happen when an employer either:
The test for a genuine redundancy is:
If your redundancy does not fit the above criteria, then it is likely you will have a case for unfair dismissal on the basis that the redundancy is not a genuine one.
Restructure – Reduction in the number of positions:
Julie is working as a medical receptionist in a busy doctor’s surgery. Julie works with 4 other medical receptionists. Julie is the only medical receptionist to be made redundant. Julie’s duties are distributed among the remaining medical receptionists. This is very likely to be a genuine redundancy.
Downturn in Business
Lee Lin, is a print journalist and works for a major newspaper in Adelaide, South Australia. Over the last few years, there has been a significant reduction in sales of print newspapers and the board has decided to cut the newspaper from 40 pages to 30 pages. As a result, Lee Lin and another journalist have been made redundant. This is very likely to be a genuine redundancy as Lee Lin’s role is no longer required due to the downturn in business.
Reasonable redeployment & a lack of consultation.
Priya is working as a graphic designed for the state government. The state government decides to outsource of all of its web content to a private graphic design company. Priya is told that her job no longer exists with the state government and her job has been made redundant. Priya was never consulted about this change. It is likely that this will not amount to a genuine redundancy and Priya could lodge and unfair dismissal application.
Sham Redundancies:
Sam has been working with an electrical company as an electrician for 9 months. At the Christmas party, Sam’s boss tries to kiss them. Sam refuses the advance and leaves the party straight away. Sam was due to return to work after the holiday close down period but the next day, receives an email notifying them of a redundancy. Sam knew that the boss has work lined up for the next year and believes that the redundancy was due to incident at the Christmas party. If there has been no downturn in work and the reason for the dismissal was Sam rejected the boss’s advances, the redundancy will not amount to a genuine redundancy and Sam will be eligible to lodge an unfair dismissal application.
*If you experience sexual harassment in the workplace, contact us for further advice.
This is a strict time frame. You should ensure that you make the application within 21 days (that is 21 calendar days). The first day of the 21 days, is the day after your dismissal.
There may be times where you are notified of your dismissal, but your final day of employment is not for some time (say 4 weeks later). In this case, the dismissal will take effect on your last day of employment.
Example
If an employee is given 4 weeks’ notice that they will be dismissed, and they work through the 4 week period – then the date that the dismissal takes effect will generally be at the end of that 4 week notice period. HOWEVER, if an employee receives 4 weeks’ pay in advance in lieu (instead) of working and is NOT required to work through the 4 week notice period – then the date that the dismissal takes effect will generally be the last day worked unless the employer specifies a different date of dismissal.
Example: Courtesy of the Fair Work Commission.
Length of service The law provides that you need to have completed a minimum period of service to be eligible to make an unfair dismissal application.
If you have not been employed for at least the minimum period, you will not be eligible to make an unfair dismissal application. Time period Can I lodge an Unfair Dismissal Application?
If you are still confused as to whether you are eligible to lodge an unfair dismissal, please take the Fair Work Ombudsman Quiz.
https://www.fwc.gov.au/termination-of-employment/unfair-dismissal/eligibility
You will need to complete a Form 2 – Application for Unfair Dismissal.
This can be found on the FWC website. At this link:
https://www.fwc.gov.au/content/rules-form/unfair-dismissal-application
This form will need to be emailed to the FWC.
You can find directions in the Form 2 about how to lodge this application. You can also complete the form using the online lodgment service using this link:
Once you have completed the Form 2 you should email it to the FWC. Details for the FWC can be found here:
https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/commission-offices/south-australia
You should receive a confirmation email from the FWC saying they have received your Application. In a few days you should receive a listing advice from the FWC that will give you a time and date for a conciliation conference. It is likely this will be in 3-4 weeks time.
A filing fee applies for an Unfair Dismissal application. Check the current fee on the FWC website.
If you cannot afford to pay the fee, you will need to complete Form 80 – Application for Waiver of Filing Fee. You can find more details in the link or by contacting the Fair Work Commission.
The Fair Work Commission (FWC) will hold a conciliation conference between you and the employer to help both of you come to an agreement. You can use the information below to help prepare for the conciliation conference.
On the date of the conciliation conference, a conciliator will call you from the FWC. The conciliator will be an impartial third party. The employer will be on the phone as well.
https://www.fwc.gov.au/termination-employment/unfair-dismissal/about-conciliation .
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
Every day we receive phones calls from workers who have resigned from their employment because they genuinely could not face another day. We completely understand this situation; however, when a worker resigns from their employment, it can significantly impact on their ability to address the unfair, discriminatory behaviour that is causing the workplace issues.
There may be ways for you to address your issues internally and we can provide with you advice about this.
There also may be ways for you to address the unfair treatment through an external process, but there are occasions where resignation can bar you pursuing a remedy for the unfair treatment. That is, you may have an unfair dismissal, discrimination, workplace bullying or workers compensation claim. If you resign, it might be more challenging to pursue these types of claims.
If you are unable to attend your workplace, you might consider seeing your General Practitioner and discuss taking some time off work. It is generally important to obtain a medical certificate from your doctor certifying that you are unfit for work.
The National Employment Standards provide that full-time employees have ten days of Personal Leave each calendar year (pro rata for part-time workers). If you have run out of personal leave, then you might consider applying to access your annual leave or long service leave. You might also consider using unpaid leave if you do not have any personal leave days left. Generally, a worker will need to apply to access unpaid leave, annual leave or long service leave. An application can be done formally (through a proscribed workplace form) or be a simple email making the request.
You do not need to apply for personal leave.
In most cases, it is better to take some time away from the workplace than it is to resign rashly.
There is a practice in many workplaces where a manager or human resources representative will advise and employee that they can either resign or face dismissal.
If you resign, you may be prevented from making an unfair dismissal claim.
If this is happening to you, ask your employer for some time to consider the ultimatum and get some advice immediately. In most cases, this is a reasonable request, and if reasonable, your employer should agree. In some cases, it might be better that you resign. In other cases, your employer might be trying to avoid any consequences for their unfair treatment of you. It is very important that you seek advice before making this decision.
If you are a union member, call your union.
If you are not a union member, then please feel free to call the Working Women’s Centre on
08 8410 6499
or using our toll free number
1800 652 697.
You can also submit an online enquiry on our website.
Please be aware that we may not be in a position to respond to your enquiry within 24 hour’s, but we will advise you of the waiting period when you first telephone or email us.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
You have the right to be treated with respect and to be protected from stress and trauma at work.
Your job is one of the most important parts of your life. If you are not respected and protected at work it can make you unwell. You might notice feeling tired, withdrawn, easily upset, less interested in things you normally enjoy, nauseous, irritable, panicky, short of breath, or teary. You might find new difficulties in your personal relationships, or experience difficulty sleeping, a racing heart, a lower appetite, headaches, or stomach pain. Sometimes these feelings add up to what is called a psychological illness – like depression, anxiety, adjustment disorder, or post-traumatic stress disorder.
These are all very normal and common reactions to feeling disrespected or threatened at work. If you feel this way, you are not alone. Where can I get help?
Find a supportive General Practitioner (GP) if you do not already have one already and make them your regular GP. You should feel comfortable with and believed by your doctor. If you don’t, try seeing someone else.
You can talk to a GP in a language other than English. All GPs have access to phone based interpreters and some GPs consult in languages other than English. If you’d prefer to see a GP who speaks a language other than English, ask family and friends if they know of a doctor who consults in your preferred language or search online to find someone.
Make an appointment with your GP and tell them about your issue, keeping in mind that doctors are very used to talking with patients about stress, trauma, and problems at work. Talking with your GP can help you get better, and might also help with a workers’ compensation claim in future.
When you see a GP, ask about getting a mental health plan. As well as providing a pathway to better mental health, a plan can offer you access to cheaper psychology appointments.
Speak with a psychologist or counsellor. Your GP can help you find someone suitable or you can search online to find someone.
Find out if you have access to free counselling or medical treatment through an Employee Assistance Programme (EAP) at work and use it if you do. Information about and EAP might be posted on a notice board at work, in documents you were given when you started work. You can also ask a colleague, your manager, or Human Resources.
If your issue involves sexual harassment, abuse, or domestic or family violence, you can call 1800RESPECT (1800 737 732) any time to speak with an experienced trauma counsellor.
Join your union if you are not a member already. There is a union for every worker in Australia. Like insurers, unions may not be able to help with a pre-existing issue when you join, so it’s important to be in the union before you need help.
A union is an organisation made up of workers in your line of work. Unions are funded by workers, who pay membership fees, and they help workers to fight for and protect their work rights.
You can find out what union covers you by calling Australian Unions on 1300 486 466.
Reach out to friends, family, and colleagues. Tell trusted people about your issue and ask for their support. Be specific about what you need – like help caring for children while you attend counselling, or someone to take a walk with once a week.
You can also access a caring voice over the phone between 5pm and 11:30pm any day by calling the Lived Experience Telephone Support Service (LETSS) on 1800 013 755.
Take sick leave if you can and use the time to recuperate.
Make plans to take annual leave and allow yourself a total break from work.
Take your work breaks and leave the workplace during lunch if you can.
Try to minimise your access to work emails and phone calls after hours. Keep work screens out of the room you sleep in.
Consider whether or not any flexible work arrangements could help and might be agreeable to your employer. Changes might include a temporary reduction in hours, agreement to work some hours from home, or different start and finish times. Ask your union for help in seeking changes like these.
Apply for new jobs and ask to catch up with any friends or contacts who may be able to connect you with new work opportunities.
Check out the resources about mental health and work available at headsup.org.au. Use the exercise that deals with helpful and unhelpful thoughts whenever you feel confronted by something that happens at work.
Try some relaxation exercises. Breathing exercises, muscle relaxation, guided visualisation, and mindfulness meditation can help. There are many free phone apps that can help you to try relaxation exercises for the first time, as well as resources at beyondblue.org.au.
Take time every day to do one or more pleasurable things like going for a walk, taking a bath, reading in the sun, watching you favourite TV show, sitting under a tree, or calling a friend to talk.
If you have an illness that is caused or contributed to by your work, you can claim lost wages, treatment costs, and in some cases, lump sum compensation. This is called a workers’ compensation claim. In South Australia, workers’ compensation claims are generally dealt with by Return to Work SA.
You can make a claim whether you are a part-time, full-time, casual, or labour hire worker. Sometimes you can even make a claim if you are a contractor or self-employed.
We encourage you to strongly consider making a claim about a work injury if it has already caused you to take sick leave, or if you feel your only option is to leave your workplace.
You should also consider whether or not you have access to income protection through, for example, your employer or superannuation fund, or if you have access to Centrelink payments.
Your employer will know about and see your claim. If you have time off work or are noticeably unwell, your colleagues will know something is wrong but they will only know you have made a claim if you or your employer tells them. You can ask your employer to honour your privacy by not telling colleagues about your claim.
Future employers will only know about your claim if you or your current employer tell them about it; there is no publicly available register of past claims. In Australia is unlawful to refuse to give a person a job because they have made a workers’ compensation claim in the past.
Your claim might be rejected. If this happens, you can challenge the decision. Your union or one of the services listed in this factsheet can help you with this. You can also talk with a lawyer.
When you make a claim, Return to Work SA will most likely ask for more information about your illness and its cause. Providing this information can be difficult and for some people, it will also bring up past difficulties or trauma.
If you want to speak with someone about a personal crisis or thoughts of suicide, call Lifeline on 13 11 14 any time of day.
If you need an interpreter, call TIS National on 131 450 (local charge applies) and ask to talk with Lifeline on 13 11 14.
The Mental Health Triage Service 13 14 65 can also help with mental health emergencies, any time.
This material is designed and intended to provide general information in summary form on legal topics, current at the time of publication, for general informational purposes only. This is not legal advice.
These factsheets have been designed & translated to help women better understand the worker’s compensation scheme and navigate the psychological work injury claims process.
Find a claim form here: https://www.rtwsa.com/media/documents/claim-form.pdf
Return to Work SA is an Insurer and Gallagher Bassett and Employers Mutual are claims agents. Your claims manager works for them.
Only you and your representative work for you.
Keep an up to date work capacity certificate
Keep seeing your doctor regularly to update your certification
Get advice before signing anything
Respond to reasonable requests
If you’re not sure if a request is reasonable, ask for it in writing by email and seek advice.
Communicate how it suits you
You have a right to an interpreter if you need one. You can also ask to communicate with your claims manager by email if you find speaking by phone stressful or to be contacted only via your representative. You have a right to refuse to be recorded.
Choose your doctor
You have a right to see your own GP or other doctors for treatment. Don’t agree to have your employer attend medical appointments or speak with your treating doctor. You may be asked to see an unfamiliar doctor for assessment but can seek a second opinion if you disagree with them. You have a right to receive a copy of any medical reports made about you.
Prioritise self-care
The workers compensation claims process is stressful. Care for yourself by seeking counseling, support from family and friends. And taking time to do things you normally find enjoyable.
Prepare for claim rejection
Most stress claims are rejected in the first instance. Seek advice when you receive your rejection as the decision can be reviewed.
Speed up your claim
The insurer will attempt to make a decision within 10 days however complex claims can take longer. If you are not receiving interim payments and you are unhappy with the delay, seek advice about expediting their decision.
Helpful services
The Working Women’s Centre SA
Young Worker’s Legal Centre
Your Union
There is a union for every worker in Australia. Unions can help you with a workers compensation claim and in many cases, offer you access to a workers compensation lawyer.
Call unions Australia on 1300 486 466 to find your union if you’re not a member already.
