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Arts workers: know your rights at work!

Please note that this is general information & may not be relevant to your particular matter. This toolkit should not be taken as 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:

  • Sexually suggestive comments, insults, or “jokes” or imagery.
    • Requests for sex or to perform sexual acts.
    • Unwelcome touching or physical contact.
    • Intrusive questions or comments about your private life or appearance.
    • Inappropriate staring or leering.
    • Sexually explicit or harassing messages (including text or social media), phone calls, emails, or images.

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:

https://www.meaa.org/

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.

Template for how to write a letter of demand

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:

  1. Underpayment of wages: $XXX 
  2. Underpayment of superannuation: $XXX
  3. Unpaid annual leave: $XXX
  4. Unpaid notice: $XXX

[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]

 

Sexual Harassment at work

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:

  • Deliberate verbal comments of a sexual nature, suggestive remarks, ridicule and offensive jokes.
  • Physical contact such as touching, pinching, patting, hugging and brushing against another person’s body.
  • A display of offensive or erotic pictures.
  • Sexual teasing, practical jokes, sexual name-calling or ‘stirring’.
  • Sexually suggestive looks or gestures such as leering, ogling or staring.
  • Unwanted requests of a sexual nature.
  • Continuous requests or pressure to develop a relationship.
  • Persistent questions or comments about a person’s private life.
  • Considering a person’s physical attributes rather than their skill or experience.
  • Sexually based emails and ‘sms’ messages, this would also include messages with sexual innuendos.

Can sexual harassment be a criminal offence?

Forms of sexual harassment which may constitute criminal offences include:

  • physically molesting a person
  • indecent exposure
  • obscene communications (telephone calls, faxes, letters, computer messages)
  • sexual assault
  • stalking

These actions can be reported to the police.

 

What are the effects of sexual harassment?

  • loss of sleep, confidence, job satisfaction, promotion and other work entitlements
  • lowered job performance and or job insecurity
  • inability to concentrate
  • ill health
  • an inability to relax
  • difficulty coping with everyday tasks

 

Informal ways of dealing with harassment:

  • If possible, confront the harasser directly. You can have a support person with you while you do this.  This can be effective if you feel safe to do so.
  • Report incidents to a sexual harassment contact person in your workplace and discuss ways of informally resolving situations.
  • Talk to your co-workers, especially women who may have suffered harassment and will support your complaint.
  • Keep clear notes (preferably diary notes) if you experience incidents of harassment or harassment is reported to you. Document dates, places, times, who was there and what was said. Any records of incidents should be kept safely.

Formal ways of dealing with harassment:

  • If appropriate, and if there is one, take a look at your workplace policy. Follow procedures if you feel safe to do so.
  • If you work under an award or enterprise agreement, you should follow the grievance procedure in your award or agreement.
  • If you are a member of a union, you can have a union representative advocate on your behalf.
  • You can make a complaint to the Equal Opportunity Commission under the State Act or the Australian Human Rights Commission under the Federal Sex Discrimination Act. Your Union or the Working Women’s Centre can assist with this.

Useful tips to consider if you are being sexually harassed in your workplace:

  • Tell a co-worker that you trust to keep an eye out for you. Make sure you have made it clear to them how this is affecting you and how you think you may want to handle the situation.
  • Try to minimise situations where you are left alone with the offender.
  • Report it to your doctor if the harassment has begun to affect your health and well-being.

 

How can the Working Women’s Centre Help?

We can:

  • Provide advice and information about sexual harassment
  • Inform you of the complaint procedure
  • Help you make a complaint
  • Advocate on your behalf up to and including conciliation

 

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: 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

  • Yarrow Place 
    Yarrow Place
    Rape and Sexual Assault Service is a service for anyone who has been sexually assaulted.
    Services include:
    24 Hour Crisis Response Service for recent sexual assault—this includes support from a social worker, medical care by a doctor or nurse, and collection of forensic evidence for people who are considering legal action.
    — Professional counselling and advocacy for recent and past sexual assault clients as well as their support people.

    Phone: (08) 8226 8777 or (Toll free) 1800 817 421

 

  • Uniting SA Sexual Abuse & Sexual Assault Counselling for young people
    You can access this service if you are between the ages of 12 and 25, and homeless or at risk of homelessness.

    Phone: (08) 8202 5060

  • 1800RESPECT1800RESPECT is a national 24 hour online and telephone service offering counselling and support to anyone experiencing domestic and family violence and/or sexual assault and their family and friends.Freecall 1800 737 732 (24 hours)


If your life or someone else’s life is in immediate danger, phone 000 (triple zero).

Sexual Harassment at Work – Should you make a Workers Compensation claim?

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

  • unwelcome touching;
  • staring or leering;
  • suggestive comments or jokes;
  • sexually explicit pictures or posters;
  • unwanted invitations to go out on dates;
  • requests for sex; intrusive questions about a person’s private life or body;
  • unnecessary familiarity, such as deliberately brushing up against a person;
  • insults or taunts based on sex;
  • sexually explicit physical contact;
  • and sexually explicit emails or SMS text messages.

 

Sexual Harassment in the Workplace
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]

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 recently published Respect @ Work Report.[2]

[1] The results of that survey can be found here: https://www.humanrights.gov.au/ourwork/sex-discrimination/publications/everyones-business-fourth-national-survey-sexual.

[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.

 

Lets 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:

https://www.beyondblue.org.au/the-facts/anxiety-and-depression-checklist-k10?gclid=CjwKCAiAgqDxBRBTEiwA59eENyS3Jrp5tjC3jsEixZwIXYseVttfkyMU22K9wom6l_Ngdg67TrkX3BoCS-MQAvD_BwE

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:

  1. The first step is to make an appointment with your doctor to discuss your injury. Before you can make a claim, you will need to obtain a medical certificate (a Return To Work Capacity Certificate that certifies that you are suffering from an injury).
  2. The second step is to notify your employer of your injury by providing them with your medical certificate or simply telling them about your injury. If possible, do this in writing so you have a record of it. The notification could be as simple as writing an email to the HR department or your manager.
  3. The third step is to complete a Return to Work SA claim form and provide this form to your employer. This form is found at
    https://www.rtwsa.com/media/documents/claim-form.pdfYour employer must provide this form to the claim’s agent within 5 business days of you providing it to them. If you do not feel comfortable providing this information to your employer (this might be the case in many small businesses), then you can send your medical certificate and claim form directly to the claim’s agent. The claim’s agent will then contact your employer. In many workplaces, if you are away from work for more than 2 days then you will be required obligation to advise your employer of your illness and provide a medical certificate. Of course this obligation can vary so it is best to check your policies.If you do not know who the relevant claims agent is then you can go to the Return to Work SA website:
    https://www.rtwsa.com/insurance/insurancewith-us/claims-agent-lookup

    Look up which claims agent has responsibility for your workplace. In South Australia, your employer will either be covered by Gallagher Bassett, or Employers Mutual Limited, however larger employers and government agencies are self- insured (this means that they manage their own claims).

  4. The claims agent will then have a maximum of 13 weeks to determine your claim. In many cases, the claimant might receive interim payments (weekly payments while the claim is determined). If your claim is accepted, you will be entitled to the following:
    1. Payment of reasonable medical expenses – doctor, psychologist, psychiatrist appointments, medications, counseling).
    2. Income Maintenance (weekly payments while you are unable to work due to your psychiatric injury) – up to 2 years of income support (full rate of pay for first year of income and 80% of your income for the second year).
    3. Rehabilitation – support to rehabilitate you back to your workplace if possible.
  5. If your claim is not accepted and you wish to dispute the determination, then please contact the Working Women’s Centre SA and we will provide you with further information.

 

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

  • Your injury is only compensable to the extent of and for the duration of the relevant aggravation, acceleration, exacerbation, deterioration or recurrence.

  • The law also says that if your psychiatric injury is caused by some reasonable action then the claims agent may reject your claim on the basis that you are suffering an injury as a result of reasonable administrative action. We do not propose to deal with this caveat in this factsheet.

Mistletoe is not consent

Please note that this is general information & may not be relevant to your particular matter. This toolkit should not be taken as legal advice.

When we get into the festive season at the end of the year, its important for employers to stay vigilant & 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 the prevention & 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.

 

So you’re planning the work Christmas party.

 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.

 

Here are some practical steps an employer can take to ensure that the Christmas party is safe and fun for everyone:

  1. Remind all employees of your sexual harassment policies. If you don’t have a sexual harassment policy, get one. Sexual harassment is a serious issue, and it can have catastrophic consequences for victims and the workplace. It’s an issue that deserves a well thought out, appropriate, and effective policy.
  2. Set behavioural expectations early. Let employees know in advance that any form of sexual harassment or abuse will not be tolerated and that all employees will be expected to follow normal workplace behavioural standards.
  3. Ensure that there are senior, trusted and sober members of staff at the Christmas party to ensure that any anti-social and inappropriate behaviour is stopped and there is a sober person of whom a disclosure/complaint can be made to. This person should be someone who understands the gendered nature of sexual harassment and a person with authority within the workplace.
  4. Let your staff know that they should feel comfortable calling out anti-social and inappropriate behaviour in a safe manner. Let your staff know that if If a woman discloses any sexual harassment that she will be listened to and the complaint will be investigated and actioned. All workers must understand that there will be proportional disciplinary action for any anti-social and inappropriate behaviour.
  5. If you are providing alcohol, have a cut off time for alcohol and stick to it. There are case examples of employers who have been held to be vicariously liable for the actions of their employees, where the employer has fostered an environment which allowed the misconduct to occur.
  6. Ensure that your workers can get home safely by holding the Christmas party in a central location with private and public transport options. If there is alcohol available at the party, consider providing all workers with a cab charge.

*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 this

If you have an issue with sexual harassment in your workplace, and need assistance please contact us.

If you are interested in further training and educational resources on sexual harassment please refer to our training page, and fill out an online enquiry form.

Underpayments: Have you been paid correctly?

Please note that this is general information & may not be relevant to your particular matter. This should not be taken as 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:

  • Not paying you at the correct award rate;
  • Not paying you penalty rates or the incorrect rate;
  • Not paying you allowances or other loadings;
  • Not paying your superannuation
  • Not paying the correct notice upon termination of your employment
  • Not paying the correct amount of redundancy pay
  • Not paying out your long service leave or annual leave entitlements correctly

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 9.5% (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 (example) *Phuong’s underpayment
*This case study is fictional,  – CHECK TO GET DISCLAIMER LINE HER

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 9.5% ($1045) 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: $1045
Unpaid annual leave: $1534
Unpaid notice: $511.60

TOTAL: $14090.

 

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: $1045
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 $14090 owing to me. I request that you make the total payment of $14,090 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.

 

 

Disciplinary Meetings: What do I do?

Please note that this is general information & may not be relevant to your particular matter. This toolkit should not be taken as legal advice.

Part I

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:

  1. Organise a support person.
    You have the right to bring a support person and should organise either a friend or family member to attend. You can also request to bring a trusted co-worker, but it is important that this person does not have a conflict of interest. If you are a union member, you can bring a union official.
  2. Request more time.
    If you are unable to source a support person or need additional time – you can request this from your employer.
  3. Ask for specific details.
    If you do not have clear allegations with specific details – you can request these from your employer.

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.

 

Toolkit Part II: What are my rights in the meeting & how do I respond?

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.

How do I respond to allegations?

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.

 

Toolkit Part III:What can I expect after the meeting?

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.

Remember, you only have 21-days to lodge an unfair dismissal claim.

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.

Unfair Dismissal

Please note that this is general information & may not be relevant to your particular matter. This should not be taken as legal advice.

Important: You have 21 days from the date of dismissal to make an application.

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.

 

Part 1 – Have you been unfairly dismissed?

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.

 

How do I know if I was unfairly dismissed?

You have been unfairly dismissed if:

  1. The Dismissal You were dismissed.
  2. The dismissal was harsh, unjust or unreasonable.
  3. If you were employed by a small business, that the dismissal was not consistent with the Small Business Fair Dismissal Code.
  4. The dismissal was not a case of genuine redundancy.

 

1.The Dismissal

  • the initiative of the employer; or
  • If you were forced to resign due to conduct by your employer. This is known as constructive dismissal.

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.

 

2. Criteria for harshness

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:

  1. Whether there was a valid reason for dismissal.
  2. Whether you were notified of that reason.
  3. Whether you were given an opportunity to respond to any reason.
  4. Whether you were offered or allowed a support person present in any discussions.
  5. If the dismissal related to unsatisfactory performance, whether you had been warned about the performance before the dismissal.
  6. How large is the business, and has the size of the business has an impact of them following appropriate procedures for dismissal.
  7. Does the business have a dedicated human resource specialist.
  8. Any other matters the FWC considers relevant.

 

3. Is the dismissal inconsistent with the Small Business Fair Dismissal Code?

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

 

4. Genuine Redundancy

You will not be eligible to lodge an unfair dismissal case if you were dismissed because of a genuine redundancy.

 

What is a redundancy?

Redundancy can happen when an employer either:

  • doesn’t need an employee’s job to be done by anyone, or
  • becomes insolvent or bankrupt.Redundancy can happen when the business:
  • introduces new technology (eg. the job can be done by a machine) slows down due to lower sales or production
  • closes down
  • relocates interstate or overseas
  • restructures or reorganises because a merger or takeover happens.

Remember: A person is not made redundant, a POSITION or JOB is made redundant.

The test for a genuine redundancy is:

  • The employer no longer requires the person’s job to be performed because of operational requirements; and
  • The employer has complied with any obligation to consult in a modern award or enterprise agreement; and
  • There is no reasonable way to redeploy the employee within the business.

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.

 

Examples of Genuine Redundancy

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.

 

 

Examples of Non-Genuine Redundancy

Examples of situations when a worker may have been unfairly dismissed:

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.

 

Time period

You have 21 days from the date of dismissal to make an application.

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.

 

 

Can I lodge an Unfair Dismissal Application?

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 your employer is a small business employer (less than 15 employees), then your minimum period of service is 12 months.
  • If your employer is a large business (15 employees or more) then your minimum period of service is 6 months.

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

 

Part 2 – Making the Application

If after reviewing the information above, you think you have been unfairly dismissed then you will need to make an application to the Fair Work Commission (FWC) within 21 days from the date of the dismissal.

 

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:

https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/lodgeapplication/online-lodgment-service

 

Filing the Application

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.

 

Fees

There is a filing fee of $73.20 for an Unfair Dismissal application.

If you cannot afford to pay the fee, you will need to complete Form 80 – Application for Waiver of Filing Fee. That can be found on the FWC website.

https://www.fwc.gov.au/content/rules-form/waiver-application-fee

 

Top 5 tips in completing your application form

  1. At Part 2.1 you should include what outcome you want, we recommend compensation (the maximum is 26 weeks), a statement of service, and for the dismissal to be rescinded and you be allowed to resign.
  2. At Part 3.1 insert brief reasons why you were dismissed. Please be aware that if you have a workers compensation matter, then resigning from your employment may prohibit you from receiving workers compensation. If you were given a letter of dismissal, refer to it here, and attach it to the application.
  3. At Part 3.2 you need to explain here why the dismissal is unfair. Use the criteria for hardness outlined in Part 1 of this toolkit to help you with what you need to say. If you were made redundant, or your employer was a small business you need to address that here too.
  4. At Part 3.2 it is best to use dot points or number your paragraphs. Be concise and try to avoid long, complicated paragraphs, with opinions and emotions.
  5. Make sure you submit your application within 21 days from the date of your dismissal. This is very important.

 

Toolkit Part 3 – Conciliation conference

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.

 

Overview of the Conciliation conference

  • The conciliator will explain the process for how the conciliation will be run.
  • You will then get a chance to make a statement. An opening statement is a summary of your unfair dismissal application. You may also choose to respond to the employers response in your opening statement. The purpose of your opening statement is to put forward your case, in a concise way, at the start of the conciliation conference. Tip: prepare your opening statement before the conciliation conference so you can read it out, rather than having to think of what to say on the spot. 
  • The employer will then be given an opportunity to make an opening statement. The conciliator may ask some questions of you and your employer.
  • The conciliator will then break you into separate sessions. The conciliator will talk to you in a private session, and ask you to make a first offer. Prepare what your first offer will be before the conciliation. This can include compensation, statement of service, or resignation. Tip: start higher than what you want to settle for, so you have room to negotiate.
  • The conciliator will then take the offer back to the other side.
  • It is likely to go back and forward between both parties until an agreement is reached.
  • If an agreement is reached, the conciliator will help to draft Terms of Settlement for both parties to sign.
  • If an agreement is not reached, then the matter will proceed to a hearing, in person, at the FWC.

Here is some information from the Fair Work Commission website about conciliation:

https://www.fwc.gov.au/termination-employment/unfair-dismissal/about-conciliation .

Should I resign? Important information to consider before handing in your resignation.

Should I resign?

Short answer: Not before you receive some advice about your issue.

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.

 

What should I do If I can’t face my workplace or someone in my workplace?

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.

 

My boss has given me an ultimatum: resign or be fired.

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.

 

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.

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.

Dealing with Workplace stress – Workers Compensation

These factsheets have been a result of a project developed by Anne Purdy & Jaspreet, supported by the Augusta Zadow Awards.

These factsheets have been designed & translated to help women better understand the worker’s compensation scheme and navigate the psychological work injury claims process.

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?

 

Speak to a supportive doctor

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.

 

Seek counselling

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.

 

Connect with your union

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.

 

Use other supports

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 breaks

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.

 

Look for new work

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.

 

Take time for self-care

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.

 

Consider making a workers’ compensation claim

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.

 

What are the risks of making a claim?

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.

 

In an emergency

Call 000 in an emergency.

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.

 

Other helpful links

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