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Working from home in a share house – tips

Living in a shared house while working or studying from home during the SA lockdown can be a tricky situation. This factsheet provides general tips on working and studying from home, dealing with roommates, and lease issues during this difficult time. 

Working and studying from home 

A share house is usually far from the ideal working environment; share houses can be crowded and often lack workspaces, proper heating and adequate internet. The following tips can help you to navigate the situation: 

  • Try to find a dedicated workspace that is separated from leisure spaces if possible. Speak with your housemates about how everyone wants to use the shared spaces.  
  • Use a supportive chair and prop up your computer so that it is at eye level.  
  • Staying active is especially important when you don’t have an ideal office setup, so try to find ways to move more throughout the day. Take lots of breaks, including breaks from screen time.  
  • Create boundaries with work and study responsibilities – many women find that their workloads have increased during the pandemic, in part due to working from home. Create a routine in which you start and finish work or study the same time every day.  
  • Remember to be kind to yourself – share houses are not designed with home offices, and there will be interruptions. It’s okay to achieve less than you normally would.  
  • Maintain social chats with colleagues or classmates online. 
  • Check whether you are entitled to reimbursement for working from home expenses, such as internet, computer accessories or stationary. Check your employment contract and Enterprise Agreement / Award. If you are unsure, you can contact the Working Women’s Centre for assistance. 

Note: some of these tips are based on the SA Health Working from Home fact sheet. 

Getting along with housemates  

Your housemates are not always the people you would choose to spend every hour of every day with. Lockdowns are stressful and can bring out conflict and frustration.  

There are some steps you can take to create a positive dynamic in a share house: 

  • Ask your housemates what they need during this time, and share what you need from them. For example, some people may want to spend a lot of time together to avoid feelings of isolation, others may need more personal space and alone time. Communicating needs and issues proactively can help to avoid tension and hurt.  
  • Be kind to each other, at a time when reactions might be heightened by anxiety and stress. Focus on creating an atmosphere of acceptance and tolerance. 
  • Keep the house clean and tidy 
  • If conflicts come up, focus on the issue, instead of the person. Avoid blaming others and do your best to work together to find a solution.  

Note: Some of these tips are based on Housing & Residential education website. 

Staying safe 

COVID-19 precautions 

  • Have a conversation with your housemates about the COVID-19 precautions you expect from each other.  
  • If you, or any of your housemates are particularly vulnerable to COVID-19, it is important to do everything you can to keep everyone safe.  
  • If anyone in your house needs to self-isolate or quarantine, follow the SA Health requirements and recommendations and call the COVID-19 Information Line for advice on 1800 253 787. 

Mental health  

  • Look after each other’s mental health. Check in regularly with your roommates and don’t be afraid to ask for help from them when you need. Asking “are you OK” and sharing a cuppa can go a long way.  
  • Seek support from mental health services such as Beyond Blue, or contact the SA Mental Health Triage Service on 13 14 65 for urgent support.  

Fear of violence 

  • If a housemate makes you feel unsafe, you are allowed to leave your home to protect your safety during a lockdown.  
  • Call 000 if you are in immediate danger.  
  • Other support services for an emergency include Homeless Connect SA on 1800 003 308 and the DV Crisis Line on 1800 800 098.   

Rental issues  

Inconveniently, issues to do with your lease, or other rental issues can still arise during a lockdown.  

If you have questions with regards to renting, be aware that:  

  • There are some extra measures in place to protect renters in relation to COVID-19, including a moratorium on evictions and protection for tenants who breach their agreement to comply with COVID-19 restrictions. The SA Customer and Business Services website listed some of the common situations arising COVID-19 and general advice for landlords and tenants.  
  • According to current activity restrictions, on-site open inspections and auctions are banned in SA. If your landlord or real estate agency insists to take people in to inspect the property, you have the right to report them to the police. 
  • If your lease is due to end during the lockdown, you can still move house as long as the move date was set before lockdown started.  
  • To access advice on your rights as a renter, you can contact RentRight SA at 1800 060 462. 

Note: Some of these tips are based on the SA Customer and Business Services website and RentRight SA website. 

 

Further resources: 

 

 

SA lockdown financial relief

Fact sheet for workers

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  

Paid Leave options 

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.

Government COVID-19 payments 

COVID-19 Disaster Payment 

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.  

  • The payment is for workers who have lost income and do not have pandemic related paid leave entitlements (this includes pandemic payments provided by the state, and the Pandemic Leave Disaster Payment). 
  • To receive this payment, you must be 17 or older and be either an Australian resident or have a visa which enables you to legally work in Australia. 
  • The payment amount is either $325 per week or $600 per week, depending on how many hours of work you lost per week. 
  • You can make an application starting from the 28th of July.  
Pandemic Leave Disaster Payment 

You may be eligible to receive this payment if you are unable to work due to:

  • having to isolate or quarantine because of either having COVID-19 or being a close contact of someone who does, or 
  • having to care for someone who has COVID-19 

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.

SA COVID-19 cluster isolation payment

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.

Crisis Payment for National Health Emergency (COVID-19) 

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

SA COVID-19 Business Support Grant  

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

Other government payments 

There are government income support payments (Centrelink payments) that might apply to your situation.  

Payments include:  

  • JobSeeker – if you are unemployed and looking for work, or sick/injured and not able to perform your work/study for a short period of time 
  • Youth Allowance – if you are 24 years old or younger and a full-time student or Apprentice, or 21 years old or younger and looking for work or unable to work for a short period of time 
  • Parenting Payment – if you are the principal carer of a child, depending on the circumstances 

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.  

Non-government assistance 

Emergency Financial Assistance

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.

Flinders University FUSA Grants  

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.  

Uni SA USASA Financial Counselling 

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. 

The Scarlet Alliance Emergency Relief Fund  

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.  

Covid-19 Emergency Assistance Initiative

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.

Red Cross Emergency relief support for people on temporary visas (Temporarily closed) 

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.  

Mutual Aid efforts  

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.  

Other supports and services

Working through the lockdown

Information for supermarket workers and other essential workers

Does my employer have to take COVID-19 precautions?   

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:  

  • Providing accessible facilities for hand washing and hand sanitising 
  • Doing whatever they can to make sure that physical distancing is happening. They could be using signage and placing floor markings 1.5 metres apart. They could also reduce the numbers of people permitted in the space and provide more space for queuing. 
  • Taking extra steps to promote online service instead of face to face service 
  • Providing masks for workers to use 

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 

Maintaining social distancing from customers 

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.  

What can I do if my employer is not doing the right thing?  

If you think your employer is not doing enough to make sure everyone stays safe, there are a few things you can do.  

  • If you are a member of a union, get in touch with your union representative or call the union office for help. Join your union here. 
  • Raise the issue with your manager or with the work health and safety representative on your worksite. The work health and safety representative has the power to help sort out the issue. In some cases, they can direct unsafe work to stop. Your employer is not allowed to discriminate against you just because you have raised a health & safety issue.  
  • If there is a serious incident, you can call SafeWork SA on 1300 365 255. You can also contact SafeWork about other issues by email: help.safework@sa.gov.au   
  • If you think your employer is not complying with official COVID-19 directions, you could make a report to the police by calling 131 444 for non-urgent assistance.  

How can I deal with an influx of upset customers or clients?  

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:  

  • Using calm communication to respond to the behaviour  
  • Refusing to engage with the customer or moving to a separate space. You have the right to stop doing work that is unsafe.  
  • Seeking support from other workers and debriefing afterwards  
  • Asking your manager if there are systems that they could put in place to reduce or better manage customer aggression 

SafeWork Australia has further information about this issue.  

Can I refuse to work during the lockdown?  

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. 

How can I deal with the stress and mental health strains of the lockdown?   

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:  

  • Get enough sleep and rest 
  • Consider taking a break from the news and social media 
  • Do things that make you feel safe and calm 
  • Create a routine that will help you have a sense of control  
  • Connect with your co-workers or other social connections via phone or online  
  • Stay active while complying with restrictions by doing some exercise or stretches at home 
Allow yourself to feel a sense of achievement for the work you are doing. Customer service and other essential services are often underpaid and undervalued. Your work is helping all of us get through a crisis, and for that you should be proud.  

 

There are also a number of mental health support services available:  

  • Ask your employer if there is an ‘Employee Assistance Program (EAP)’ that you can access. EAP is free and confidential mental health support for employees.  
  • For access to mental health services, or in a mental health emergency, call the 24 hour Mental Health Triage Service on 13 14 65 
  • There is a SA COVID-19 Mental Health Support Line 1800 632 753 and online chat 
  • Beyond Blue provides a Coronavirus Mental Wellbeing Service 

 

Young workers and sexual harassment – what are my rights?

Young female workers under 30 years old are particularly at risk of sexual harassment in the workplace. It can be tricky to know how to handle an uncomfortable situation, especially if it’s your first job or if you are new in the workplace. Here are some facts about your rights, and some common scenarios to help you to know what to do.

Sexual harassment – what is it?

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:

  • An unwelcome sexual request or advance (ie hitting on you)
  • Staring or leering
  • Jokes or comments that are suggestive or sexual
  • Sexually explicit photos or pictures
  • Texts, messages, or emails of a sexual nature
  • Personal questions about your body, private life or sex life
  • Unwelcome touching, such as purposely brushing up against you
  • Sexually explicit physical contact
  • Insulting or teasing you about something sex-related

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 6 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.

 

Olivia’s boss Mark creeps her out. He owns the small law firm at which she works as a paralegal. Olivia often has to work closely with Mark and others in the team. He is known to be a “joker” so often his behaviour is laughed off by Olivia’s co-workers. He often makes inappropriate comments about her appearance, like calling her “sexy legs” when she wears a new dress. He asks about her boyfriends and jokes about her dating history. On several occasions Mark has come up behind her and rubbed her shoulders, saying she looks stressed and should lighten up.

Olivia is sick of it and often feels too anxious to go to work. She doesn’t know who to complain to since Mark is her boss.

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.

 

Anika works in a front desk role at a wholesaler. One particular customer makes Anika feel extremely uncomfortable. He loiters around the front desk longer than he needs to, leans too close to her, and makes suggestive comments. He calls her “gorgeous” and always compliments her. Once, he came into the warehouse near closing time and waited outside for her in the carpark, as she left work for the day. He told her he couldn’t stop thinking about her and wanted to take her out for a drink.

The customer is extremely important to the business and Anika’s boss has previously told her to be nice to him. What should Anika do?

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.

Trina works in the kitchen of a fast food restaurant. It is extremely busy and the team has to work closely together to get orders ready. One Saturday night, it was flat out and Trina was bending over to get more takeaway containers out of the cupboard. Her co-worker was rushing an order through to the drive through window and said “Oi, get your arse out the way!” and slapped her bum in a joking manner as he went by.

Trina felt embarrassed and shocked but laughed it off. She has always had a good relationship with this co-worker and doesn’t want to get him in trouble. It has only happened once, and she isn’t sure if she should say something to her manager or not.

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.

 

Paige works as a waiter in a function centre. She went out on a few dates with her co-worker, Tom, but it didn’t work out. They agreed to be friends, but Tom keeps acting inappropriately towards Paige. He brushes up against her when they are both working in the bar, and jokes about her wanting to have sex with him. Once, he tried to kiss her when they were alone in the storeroom. Paige has told him to stop but Tom doesn’t listen.

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:

  • 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).

Resigning from your job

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.

 

I definitely want to resign. Now what?

 

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.

 

Do I have to work through my notice period?

Usually, you will be required to work through your notice period. However, you can come to another arrangement by agreement with your employer.

  • You can use annual leave with consent of your employer
  • You can use sick leave, if you give notice as soon as possible and provide any medical documentation requested by your employer
  • You can agree with your employer to end your employment early. If so your employer must pay out the notice period to you.
  • If you don’t want to work through your notice period because you don’t feel safe at work, call us for advice before you resign.

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.

 

Can I get fired in my notice period?

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.

 

Do I have to write a resignation letter?

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.

 

Other considerations

 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.

 

Conciliation Conference Information

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.

What is a Conciliation Conference?

  • A confidential meeting in which parties come together to try and resolve a matter with the assistance of an accredited conciliator.
  • The conciliator is independent from the parties to the dispute and is trained and experienced in dispute resolution.
  • A conciliation conference will be held on a specific date, usually via telephone. On this date the conciliator will call both you and your employer.
  • You may choose to be represented by a lawyer, advocate or union official. However, it is not uncommon to be self-represented in conciliation conferences.

Note: There is no requirement to be represented.

 

What is the conciliator’s role?

  • To facilitate communication between two parties and direct discussion around the issues. Conciliators may raise questions, make comments or recommendations to help the parties come to a resolution.
  • Conciliators do not make decisions or decide who “wins” or “loses”. They assist the parties to come to an agreement to resolve the matter.
  • These discussions are undertaken on a “without prejudice” basis, meaning anything said in the conference cannot be used later if the matter proceeds to a Hearing.

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.

 

How to prepare for a conciliation conference?

  • Gather all relevant documents and forms in relation to your claim.
  • Prepare an opening statement to read out at the beginning of the conciliation conference. This is your opportunity to tell your story and explain why you say the employer has broken the law.
  • You will be asked what you are seeking to resolve the matter. You should prepare your ideal proposal for settlement
  • Ensure you have considered what your first offer will be e.g. an amount of compensation, a statement of service, or conversion of your termination to resignation. Start with your best-case scenario, so you can compromise if necessary.

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.

 

What happens during a conciliation conference?

  • The first phase on a conciliation conference is called a “joint session”. A joint session is where all the parties are on the same conference call.
  • The conciliator will usually commence the conference by introducing the parties and explaining the how the conference will proceed. They will usually advise of the ground rules or guidelines which always involves confidentiality and respectful behaviours.
  • Each side is given an opportunity to present an opening statement or comments. This outlines key facts which have led to the conciliation.
  • Each side then has an opportunity to identify and explain key issues in their submissions.
  • Following this, there may be some general discussion and a chance to clarify issues raised and ask questions about what has been said. The Conciliator may also ask questions of the parties.
  • Each party will have a chance to say their side of the story.
  • The conciliator will usually close the joint session and then speak with each side privately, in separate sessions, and ask for suggestions on how they wish to resolve/settle the matter.
  • The offer will then be taken to the other party. The conciliator facilitates a negotiation and may go back and forth between the parties exchanging offers several times.

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?

  • If the parties come to an agreement the conciliator will help draft the “Terms of Settlement” document for both parties to sign. Terms of Settlement are documents that outline what the parties have agreed on and may include a clause that requires the terms to be kept confidential.
  • If an agreement is made, it is binding, and the complaint will be closed. If no agreement is reached, the next stage is a Hearing. A Hearing, or Trial, is a more formal process which requires giving evidence and submissions, and a binding Decision is made by a Member of the relevant Tribunal.

Note: Parties are under no obligation to reach a settlement.

How to spot a Sham Contract in a Job Advertisement.

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 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.

 

 

What’s the difference between an independent contractor and an employee?

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.

What is sham contracting?

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:

  • claim an employee is an independent contractor;
  • say something false to convince an employee to become an independent contractor;
  • dismiss or threaten to dismiss an employee if they don’t become an independent contractor; or
  • dismiss an employee and hire them as an independent contractor to do the same work.

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.

 

How can you spot a sham contract in a job advertisement?

Have a look at the advertisement for a job below. It is not uncommon to find advertisements for jobs online that have some of these features. The advertisement below is problematic because it has features of a sham contracting arrangement.
image is of a fake job ad, posted by a man in a suit named Mr Boss man, the ad says "Howdy! I am looking for a reliable person, with attention to detail. I need someone who is a quick learner and can follow instructions. You must have an ABN, a full driving license & your own car for transport. Opportunity to work 3-4 days or 7 days a week, doing around 5 -7 hours a day, early starts everyday. This position would suit someone with a background working as a: florist, cleaner, baker, hairdresser, pastry chef or website designer. "
  1. The requirement to “follow instructions” and start early points to an employment relationship. A true independent contractor running their own business would not be expected to follow instructions and should be able to negotiate when the work commences.
  2. The requirement to have an ABN does not necessarily point to an independent contractor. Some employers will say you need an ABN but all the other elements of employment are present
  3. The requirement to work a certain number of days per week and certain number of hours per day points towards an employment relationship. It demonstrates the worker does not have control over when the hours are worked.
  4. Stating that the position would suit someone with a background of “baker, florist, pastry chef etc” indicates the position does not require any particular expertise. This points towards an employment relationship because someone truly running their own business would likely specialise in a particular field.

 

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.

 

Case Studies

Have a read through these case studies for further guidance on how to spot a sham contracting arrangement:

 

CASE STUDY 1:

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.

Employee or independent contractor?

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.

 

CASE STUDY 2:

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.

Employee or independent contractor?

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.

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.

 

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.

 

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 .

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