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Requesting to work from home

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

The climate of COVID19 has led to an increase in working from home due to public health orders. A frequent enquiry the Working Womens Centre receives is employees seeking advice on their right to continue working from home. For some, medical conditions or parental obligations means that it is more convenient to continue working from home. 

Requesting to Work from Home 

Employees may make a request to their employer for flexible working arrangements. This includes a request to work from home.  

To be eligible in requesting a flexible working arrangement under the National Employment Standards, you must have been working for the employer for a period of 12 months.  

If you are a casual worker, you must have been working for the employer for a period of 12 months on a regular and systematic basis and intend to continue working on this basis. 

Please see the following draft template to make a request to your employer to work from home:
 

“[DATE] 

Dear [MANAGER] 

Re: Request for Flexible Working Arrangement | Working from Home  

I am writing to request a flexible working arrangement as at [DATE] until [DATE]. 

As I have been employed by [BUSINESS NAME] for over 12 months, I am entitled to make this request pursuant to section 65 of the Fair Work Act 2009 (“the Act”). 

My reason for this request is due to: 

[DELETE INAPPLICABLE] 

  • My parental obligations and responsibility for my child 
  • My role as a carer (Carer Recognition Act 2010) 
  • My disability [INCLUDING A MENTAL HEALTH CONDITION SUCH AS DEPRESSION OR ANXIETY]  
  • I am 55 years or over 
  • I am experiencing family violence  
  • I am supporting an immediate family member who is experiencing family violence 

 

[SET OUT DETAILS OF REQUEST AND REASON FOR CHANGE]. 
 
[EXAMPLE: MY PARENTAL OBLIGATIONS MEAN I AM REQUIRED TO COLLECT MY CHILD FROM SCHOOL AT 3:30PM. THIS IS FACILITATED BY MY WORKING FROM HOME AS I AM ABLE TO DO THIS ON MY LUNCH BREAK]  
 

Due to these circumstances, I am requesting to continue [OR] commence working from home at my current contracted hours [OR] at altered hours.  

I look forward to your response within 21 days of receipt of this letter. 

Kind Regards 

[YOUR NAME]” 

 

Should your employer’s request recent medical evidence in response to your request for flexible working arrangements, in some instances, this can be seen as a reasonable request.

Employees must follow lawful and reasonable directions given by their employers.  

Failing to follow a lawful and reasonable direction can be grounds for a dismissal, providing appropriate disciplinary measures are followed. You should obtain legal advice on the specific nature of your employer’s request and any legal obligation you have to comply with a management direction. 

 

Work Health and Safety when Working from Home 

A Person Conducting a Business or Undertaking (PCBU) has a duty of care to ensure the health and safety of workers while at work. An employee has a duty to take reasonable care for their own health and safety, and to follow reasonable directions from management.  

The employer’s duty to ensure the health and safety of workers extends to while employees are working from home. Given the current climate of COVID19 and the increase of working from home, it is important that workers are set up to work from home in a safe way. 

Performing work from home can present new risks to health and safety. Potential concerns for health and safety that arise from working from home include: 

  • Employees not being provided with adequate training and supervision to perform their job safely. This includes debriefing with a supervisor; 
  • Ensuring employees have an ergonomic chair and desk set up to prevent physical injury; 
  • Employees not taking sufficient breaks; 
  • An expectation that employee should be contactable outside of working hours. This can lead to burn out; 
  • Ensuring clear walkways to prevent tripping hazards; and/or 
  • Access to first aid supplies. 

 

Working Women’s Centre Recommendation  

We strongly encourage employees to join their relevant Union for ongoing support and advice in relation to their employment rights. 

To find your relevant union and join today, please see the following link: 

https://www.australianunions.org.au/join/begin-join//#/  

Keeping a diary of workplace harassment

Tips for recording details of workplace bullying and harassment

 

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

 

When you are experiencing bullying, harassment or discrimination at work over a period of time, it can be difficult to keep track of exactly what happened and when, especially if your mental health is suffering. It helps to keep timely records of it all, so you don’t forget the details of what happened.  

Your notes can be useful later if you wish to complain about the behaviour to your manager or HR person. It will also be good evidence to support a legal claim such as worker’s compensation, a Stop Bullying Order, or a complaint of sexual harassment in the Equal Opportunity Commission or Australian Human Rights Commission.  

If you have experienced bullying or harassment during your work day (or night), take a moment to record what happened when you get home, or as soon as you can. You can send yourself an email or a text, or write it down with pen and paper in a diary.  

Include as much detail as you can, especially the “who, what, where and when”. Include anyone who witnessed the behaviour, or anyone you spoke to about it. A structure is below to help you record all the important information. 

Remember to keep a copy of any emails, texts, photos, or other records, that might be relevant to the harassment too.  

 

Example

Diary entry: 7 June 2022, 1:30am 

Date of incident: 6 June 2022 

Time: approx. 4pm 

Place: In the storeroom at work 

Who was there? Me, Josh, Maya and Mark the head chef 

What happened? I was getting flour out the storeroom to start dinner prep and Chef came in, he said “just need some salt”. I don’t think he did, this is about the third time in the past couple of weeks he has made an excuse to go into the storeroom when I am in there. He brushed past me to the furthest shelf and put his hand on my waist as he went past, and whispered “it’s cosy in here isn’t it” in a sleazy way in my ear. I walked out and Josh could tell I was upset. He asked what happened but I didn’t want to say anything in case Chef heard.  Maya was on shift tonight too, I told her what happened on our break at 9pm.  

 

If you need advice about workplace bullying or sexual harassment, call your union or our Centre.  

You might like to check out our other fact sheets on sexual harassment at work:

Young workers and sexual harassment – what are my rights?

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

 

Top 10 Tips for Self-Representing in the Fair Work Commission

with special guests Commissioner Hampton and Commissioner Platt

 

 This webinar was presented by Nikki Candy, Lawyer at the Working Women’s Centre, and Commissioner Platt and Commissioner Hampton of the Fair Work Commission.

 

Background – The Fair Work Commission

The Fair Work Commission (the Commission) is Australia’s workplace tribunal established under the Fair Work Act 2009 (Cth). The Commission comprises of Members (who conduct proceedings and make decisions) and staff (who assist the public, parties and provide services to the Members). They are based in each State and Territory. The Commission currently has three Members in South Australia.

The Commission deals with approximately 30,000 applications and 13,000 hearings and conferences per year. The great majority of these cases involve unrepresented parties, so the information, systems and processes of the Fair Work Commission are designed to be accessed by self-represented parties.

The Commissioners’ role is to conduct the conference or hearing regarding your matter.

Commissioners Platt and Hampton kindly agreed to share their Top 10 Tips on Self-Representing in the Fair Work Commission.

 

Filing the application

Tip #1 Think about the type of application you’re filing

There are different options for filing a claim. Think about what outcomes do you want to achieve, and does the form of application enable that? For instance – consider whether you are eligible to apply for the kind of application you are considering.

The most common matters are:

Unfair dismissal claims – these claims consider whether your dismissal was harsh, unjust or unfair. You need to meet certain criteria to lodge – such as your length of service and type or pattern of employment.

General protections claims are about the reason why you are dismissed – for example, if you were dismissed for raising a workplace right, or because you were discriminated against.

[remember that there are only 21 days from the date of dismissal to file either claim involving dismissal – read our fact sheet on unfair dismissals here]

Secondly, consider what kind of outcome you are after. For example, monetary outcomes from general protections are higher but it is a long process to see this through to Court. Unfair dismissals have different limits on available compensation but generally are a more informal process. Consider how much time you want to invest in pursuing an outcome. Read some material, and get some advice.

 

Tip #2: Filling in the application: keep it simple and to the point

  • The forms are structured to ask you questions, to help you check your eligibility and to help you check you have covered the important points.
  • Explain what happened in chronological order but keep it relevant. Include what happened, and who was involved. Dot points rather than huge slabs of prose are best. Respond to the questions (if you’re unsure, just try your best) – you will get a later opportunity to explain your position and provide further materials.
  • Attach any relevant documents, for example, a contract of employment, termination letter, warning letters, or a medical certificate.
  • Applications can be lodged online, in person or via mail. Applications are not considered lodged until they are received by the Commission so be mindful of postage times – you will need to allow time within the 21 day time limit for lodging an unfair dismissal or general protections claim.

 

Tip #3: Know your terms, and know the players

Here are some common terms with which you should familiarise yourself.

Applicant – Who made the complaint (or started the proceeding) – This is normally you.

Respondent – Who the complaint is against – This is normally the employer

Commission Member – The independent Commissioner or Deputy President of the Fair Work Commission who will conduct the conference or hearing. Call them ‘Commissioner’ or ‘Deputy President’ unless they suggest otherwise.

Conciliator – There are two types of conciliators. Normally the first conciliation will be conducted by a staff member of the Commission, who often have legal training. Second conciliations (which are done if the first conciliation has failed, or if there is another reason such as a jurisdictional objection) may be conciliated by Member of the Commission. This is called a Member Assisted Conciliation.

Conciliation conference – Conciliations are an ‘off the record’ discussion where the Commission member normally tries to identify strengths and weakness of each party’s case, and considers what remedies might be awarded and then facilitates a discussion to try and get the parties to agree a basis to settle their differences without the time, cost and delay of a hearing.

Conciliations can be conducted on the phone or a Video Conference, and sometimes in person.  No records are kept if the matter does not resolve. If a settlement is agreed it will normally be documented and/or recorded.

About 80% of cases settle by the end of conciliation.

Directions Hearing – This is normally conducted on the telephone and usually occurs after conciliation has failed.  The purpose of the Directions Hearing is for the Commission Member to determine the date, length (based on number of witnesses) and mode of Hearing (phone, video conference or in person) and deadlines for you to lodge your material.  Make sure you bring your diary with you.

This is also an opportunity for you to ask questions about the process or ask for a second Conciliation if you still think the matter could be resolved.

Directions – Directions are the instructions from the Commission Member. They are normally sent to you in writing by email. They set out important timelines and instructions for your matter. Read them carefully and make sure you comply, or you may be disadvantaged.

The Directions normally contain links to information sources that will assist you understand and/or prepare your case.

Member’s Associate – Each Member of the Commission has an assistant called a Member’s Associate. You can ring the Member’s Associate if you have questions; they regularly deal with questions from unrepresented parties, but cannot provide you with legal advice.

 

Tip #4: Copy in the other party in all your Correspondence with the FWC

  • All of your communications with the Commission (and replies) must be also sent to the other party (ie Respondent or Employer). If you don’t, the Commission Member may forward it to the other side. Don’t send material to the Commission if you do not want it to be sent to the other side.
  • This is done because the hearing process is transparent and both parties are treated fairly. The Commission Member will not normally communicate with a single party (unless the other party doesn’t turn up to a hearing).
  • This rule does not apply during a conciliation – when speaking to a Commissioner privately in a conciliation, you can tell the Commissioner something that might assist the Commissioner’s understanding of your case, and you can specify that you don’t want them to pass that information on to the other party.

Preparing for conciliation

Conciliation is the opportunity for parties to resolve the matter. It is usually the first stage in most cases (although jurisdictional objections may be heard first in some cases).

Tip #5: Be prepared!

  • Know your case, and prepare some notes to help you during conciliation.
  • Reflect on the employer’s response to your claim – be prepared to be ready to deal with any issues raised in the response.
  • Prepare a chronology of events that includes party names and job titles to help explain your case.
  • Put together a proposal to resolve the matter, so you are not put on the spot when negotiating in the conciliation.
  • Be prepared to suggest a resolution when you are asked. Prepare your proposed resolution by having a look at the material on the Commission website to help you decide what might be a reasonable outcome.

Tip #6:  Know the process

  • Understand the conciliation process. It is confidential and off the record. This is often referred to as being conducted on a “without prejudice basis” – this means that it is conducted in private, and nothing that is said in the conciliation can be referred to in future proceedings. The only exception is if a resolution is agreed upon.
  • You can have a support person – this person can give you moral support and have a discussion with you, as you will need to make decisions as you go.
  • Be in a suitable location and be ready to start on time.
  1. Listen to the conciliator. They are impartial and they have no “skin in the game”. They are there to assist the parties assist a resolution in their own best interests.
  2. They will generally do an introduction about the process, with an opportunity for you to ask questions.
  3. The conciliation will then ask the Applicant (you) to summarise your case and set out your proposal for resolution. The conciliator will ask the Respondent to do the same thing – they will explain their side of the case. The conciliator may make a comment on the strength or weakness of your respective cases (especially if it is a Member Assisted Conciliation).
  4. Then the conciliator will speak to each party separately and privately. The conciliator act as an intermediary to help negotiate an outcome between the parties.
  5. If a resolution is reached, the conciliator will bring the parties back together to read through the resolution to make sure both parties agree.

Resolutions: By default, the agreement you reach in a conciliation is immediately a legally binding and enforceable contract.

  • If one of the parties is unrepresented, there may be an option cooling off period of 3 business days.
  • A cooling-off period does NOT apply in a General Protections conciliation.
  • Resolutions are recorded in a Terms of Settlement. This documents the agreement for future reference. The conciliator may draft it, or one of the parties may do so.
  • If in doubt, seek clarification from the Conciliator/Member.

During the conciliation

Tip #7: Tell your story

  • This is your chance to be heard and get your version of events across. Concentrate on the things that really matter – use your time well, and get your point across as quickly and clearly as you can.
  • Summarise your case and highlight your main points (for example, why your dismissal was unfair).

Tip 8#: Stay focussed on an outcome

  • Remember that the Conciliator or Member are used to hearing different views from parties. Just because your employer says something that you disagree with, don’t assume that conciliator believes it. They understand that most facts are in dispute.
  • Don’t interrupt other people. Write down questions or points you would like to clarify or refute.
  • Try to stay calm and focussed on reaching an outcome, rather than defending every point.
  • Be pragmatic and realistic. Only proceed to the next stage (a hearing) if that is in your best interests and you have the capacity to run such a case. Resolving at conciliation enables you to control the outcome, minimises your stress, anxiety and expense.

Preparing for Hearing

Tip #9: How to get your evidence together:

The Commission Member has to determine what happened. They do that by looking at the evidence presented by both parties.

Evidence = You will be asked to present your evidence in a Statement of Evidence. This is a summary of the evidence that you, and anyone else that you bring, will give in support of your case.

  • Stick to the facts (what you have seen, heard or said directly).
  • You will normally be your own key witness. Make sure you explain all the relevant facts. Go through the facts in a chronological order and include all the information that you have.
  • When there is a dispute about what did or didn’t happen, think about whether there is any other evidence to support what you say, such as other witnesses, CCTV footage, or documents like text messages or emails.
  • Unless you are an ‘expert’ in a particular field, try not to give your opinion.
  • Other witnesses must have direct relevant knowledge of the facts – they have heard, seen or said something themselves, not heard it from a friend! Hearsay is when you do not know the information yourself and rely on someone else.
  • If you are relying on medical evidence, it normally needs to be supported by evidence from a medical expert.
  • Write down your evidence in single numbered paragraphs, with one topic per sentence. Attach documents to your statement if you have material to reference not it in your statement. For example:
  1. I was employed as a Tradesperson on 1 January 2020.
  2. I was given a Contract of Employment. This is attached at A1.

Submissions  – this is where you apply the law to your facts and say why you have been treated unfairly.

  • You may find a statement of the law in one of the Commission’s ‘Benchbooks’. These are very useful resources summarising the law, and are available on the Commission’s website.
  • Tell the Commission Member why your evidence should be preferred and why the Commission Member should rule in your favour.
  • Break it up into numbered paragraphs with one topic per paragraph. Less can be more!
  • File your evidence and submissions (preferably by email) on time and send a copy to the other side.

Tip #10:  Take advantage of the resources on the Fair Work Commission website

  • There are many useful guides on the Commission website that can assist you preparing for Hearing, such as what to expect, how to conduct yourself, and possible outcomes.
  • Read the Benchbooks. The Benchbooks are handbooks to help you understand Fair Work legislation. They explain how the Commission has interpreted the legislation in previous cases to make decisions.
  • There are also templates available on the website, for example, documents you will need to file in an unfair dismissal hearing.
  • If you get stuck you can call the Members Associate. Remember, they cannot give you legal advice but can tell you where to look for information.

 

 

For further information on conciliations, read our Conciliation Conference Information fact sheet

Migrant Workers and Visa Holders – know your employment rights!

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

National Employment Standards  

The National Employment Standards (NES) are 11 minimum employment entitlements that have to be provided to all workers in the national workplace relations system. All workers in Australia are national workplace relations system workers unless they are self-employed or work for a government body. Australian workers, including visa holders, migrant workers, and Australian citizens are entitled to the same National Employment Standards.  

 

National Employment Standards set out minimum entitlements in relation to the following: 

  • Maximum weekly hours of work 
  • Minimum rates of payment 
  • Requests for flexible working arrangements 
  • Parental leave and related entitlements 
  • Community service leave 
  • Annual leave 
  • Personal/carer’s leave, compassionate leave and family and domestic violence leave 
  • Long service leave 
  • Public holidays 
  • Notice of termination and redundancy pay 

You can find more information on each of the standards via this link: https://www.fairwork.gov.au/employment-conditions/national-employment-standards#nes-entitlements  

 

When you start a new job, your employer is required by Australian workplace laws to provide you with a copy of a Fair Work Information Statement, which is a document with important information about your rights at work.

You can find the Fair Work Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/Fair-Work-Information-Statement.pdf  

 

If you are a casual worker, your employer is also required to provide you with a copy of the Casual Employment Information Statement, which has important information about what it means to be a casual worker and how you can become a permanent worker.

You can find the Casual Employment Information Statement via this link: https://www.fairwork.gov.au/sites/default/files/migration/724/casual-employment-information-statement.pdf  
 

Visa Working Requirements 

It is important to check the requirements of your visa to confirm if you are allowed to work in Australia, and any conditions your visa may have. For example, some visas require minimum working hours to be completed each week, while some visas set a maximum of hours that can be worked each week. Regardless of what your visa requirements are, you are still entitled to the National Employment Standards.
 

You should contact a registered Migration Agent if you have questions about your visa conditions. The Office of the Migration Agents Registration Authority (OMARA) website has a list of registered Migration Agents at the following link:
https://portal.mara.gov.au/search-the-register-of-migration-agents/
 

You can check the working conditions of your visa at the following link: https://online.immi.gov.au/evo/firstParty?actionType=query  

 

Workplace Exploitation  

Migrant workers are at a higher risk of experiencing workplace exploitation. This is because of a number of factors including fear of loss of income, lack of knowledge about Australian workplace laws, and fear of possible immigration consequences if they report breaches of Australian workplace laws. Some high risk industries with high rates of migrant exploitation are construction, agriculture and hospitality.  

 

Workplace exploitation involves employers not complying with the minimum legal entitlements of their workers. Some signs of workplace exploitation include the following: 

  • An employer putting pressure on you to work more than the conditions of your visa allow. 
  • An employer asking you to pay them money to employ you, or to pay them for a Working Visa. This is against the law. 
  • Withholding your passport or personal items. 
  • Failing to provide you with payslips or pay your minimum entitlements. 
  • Employers promising permanent residence in Australia. An employer cannot guarantee this. Only the Department of Home Affairs can grant permanent residency to a Visa Holder. 
  • Requiring you to get an Australian Business Number (ABN) when you are not running your own business. You can find more information about when it is appropriate to have an ABN in our factsheet on sham contacts.  

 

 

What is the Assurance Protocol? 

Migrant workers are often concerned that they will lose their visa if they report their employer’s conduct when it falls below the National Employment Standards. The assurance protocol is an arrangement between the Department of Home affairs and the Fair Work Ombudsman (FWO) to support visa holders who approach the FWO for help if they have breached their work-related visa conditions because of workplace exploitation.  This protocol was set up to encourage migrant workers to seek help when being exploited without the fear of their visa being cancelled.
 

The following Visa subclasses are eligible for the Assurance Protocol: 

  • Subclass 500 – (Student Visa) 
  • Subclass 417 (Working Holiday Visa) 
  • Subclass 462 Work and Holiday Visa  
  • Subclass 457 (Temporary Work (Skilled) Visa  
  • Subclass 482 (Temporary Skill Shortage (TSS) Visa 

 

Further Resources 

For more information on your rights as a Migrant Worker, please visit https://immi.homeaffairs.gov.au/visas/working-in-australia/work-rights-and-exploitation  

For more information on Wage Theft, please visit:
https://wwcsa.org.au/campaigns/ending-wage-theft/  

For more information about when it is appropriate for a worker to have or use their ABN in the workplace, please visit: How to spot a Sham Contract in a Job Advertisement. – Working Women’s Centre | Working Women’s Centre (wwcsa.org.au)   

 

Quick Guide to Superannuation

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

Superannuation may not be very exciting or seem like something you need to think about now,  but ensuring all your superannuation payments are correct could make a big difference when you retire. This factsheet will explain some of the basic rules around superannuation including how much you should get and when, and what you can do if you do not get paid all or some of your superannuation entitlements.

 

What is superannuation?

Superannuation (or ‘super’) is a compulsory system of placing a minimum percentage of your income into a superannuation fund which will become your retirement savings.

Most modern awards contain a superannuation clause requiring employers to make superannuation contributions to a superannuation fund for the benefit of an employee to avoid the employer having to pay the legislated superannuation guarantee charge.

 

 

Can I choose my own superannuation fund?

Under superannuation legislation employees can choose their own superannuation fund.

You can nominate your chosen superannuation fund by completing the Superannuation Standard Choice Form and proving it to your employer. You can follow the link below to find the form on the Australian Tax Office website:

https://www.ato.gov.au/Forms/Superannuation-(super)-standard-choice-form/

Employers will have a default fund that they use if you do not choose your own superannuation fund.

How much super superannuation should I be receiving and how often should payments be made? 

The minimum superannuation you should currently be receiving is 10% of your ordinary time earnings (see below for an explanation of ordinary time earnings). It is scheduled to progressively increase to 12% by 2025.

Superannuation should be paid by your employer into your nominated fund at least quarterly (i.e. at least every three months). The current superannuation guarantee percentage is the minimum required by law. You may be entitled to a higher amount under a modern award or an enterprise agreement.

Employees can also make voluntary contributions to their superannuation to increase their savings.

 

What are ordinary time earnings?

Ordinary time earnings are the amounts you earn for your ordinary hours of work which include:

  • over-award payments
  • commissions
  • shift loading and penalty rates
  • annual leave loading
  • allowances; and
  • bonuses

 

Ordinary hours

An employee’s ordinary hours are the normal hours they work. For a full-time worker, this may be 38 hours or a number of hours and for a part-time worker, this will be the agreed minimum hours as in an award or agreement.

If you can’t determine the normal hours of work the actual hours the employee works are their ordinary hours of work. For example, casual workers hours may vary and their ordinary hours are the hours they actually work.

However, payments received for working overtime are generally not considered ordinary time earnings and therefore do not attract a payment for superannuation.

 

 

Example:

Have a look at the example pay slip below:

 

 

You can see from Jenny’s payslip above, that she received payment in this pay period for her ordinary hours, an allowance, and overtime.

She is paid $67.80 superannuation which is 10% of payments received for ordinary hours (i.e. $600) and the allowance (i.e. $78), totaling $678.

She has not received superannuation on the $300 payment for overtime hours worked.

You can see the 10% superannuation is calculated on her gross ordinary time earnings of $678 (i.e. before tax is taken out). Her superannuation has been calculated correctly this pay.

 

Is there still a minimum amount I need to earn before superannuation is paid?

No. Previously, employees needed to earn at least $450 per month to attract superannuation payments.

However, there has been a change to the law and from 1 July 2022, employers will be required to make super guarantee contributions to their eligible employee’s super fund regardless of how much the employee is paid.

 

What can I do if my super has not been paid?

If employees are paid less than their minimum entitlements, including superannuation, they can make claims to be back paid.

The South Australian Employment Tribunal (SAET) is the jurisdiction to determine underpayment of wages and unpaid superannuation claims.

You can lodge a Money Claim for your unpaid superannuation. See their website for more information.

https://www.saet.sa.gov.au/industrial-and-employment/money-claims-monetary-claims/

It is also possible to report your employer to the Australia Tax Office (ATO) if they have not paid your superannuation. Here is a link to information about reporting your employer to the ATO:

https://www.ato.gov.au/calculators-and-tools/report-unpaid-super-contributions-from-my-employer/

 

Contact the Working Women’s Centre SA if you need advice about claiming outstanding superannuation entitlement.

 

Workplace 101: Request for Employment Records

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

As an employee, you are legally entitled to request a copy of your employment records from your employer. This will assist in calculating any potential underpayment of wages or any leave entitlements owed to you. 

Employers are legally required to retain all employment records for a period of 7 years. A failure to keep employee records or provide them upon request is a civil remedy provision and carries penalties of up to $66,600 per contravention for Companies.  

Below is a draft template of a letter of demand to assist you in requesting employment records. Make sure to insert relevant information to your individual employment within the highlighted brackets. 

 

[DATE]

[ADDRESS OF BUSINESS]

Dear [NAME OF SUPERVISOR]

Request for Employee Records

I confirm my employment at [NAME OF BUSINESS] as [POSITION TITLE] for a period of [STATE PERIOD OF EMPLOYMENT/ END DATE IF NO LONGER EMPLOYED].

I am writing to request copies of my employment records. This includes all pay records, overtime records, leave records, superannuation contribution records and pay slips. I further request copies of my timebook/s detailing my hours worked.  

Please provide all records prescribed in Regulations 3.32, 3.33, 3.34, 3.36, 3.37, 3.40, 3.45 and 3.46 of the Fair Work Regulations 2009 (Cth).

Pursuant to section 535(1) of the Fair Work Act 2009 (Cth) (“The Act”), your employer obligations are as follows:

An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees.”

Further, the Fair Work Regulations 2009 (Cth) regulation 3.42 sets out employer obligations in relation to inspection and copying of records.

…an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates.”

I look forward to receiving a copy of my employment records within 14 days of receipt of this letter.

Kind Regards

[YOUR NAME]

 

If you do not receive a response from your employer, contact the Working Womens Centre on 8410 6499 to arrange an appointment to speak to one of our Lawyers. They will be able to provide further advice on your individual circumstances. 

Workplace 101: What are the different types of employment in Australia

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

 

Different types of employment have different rights attached. Your employer should be clear about your type of employment; however, this does not always occur.

It is helpful to understand the difference between types to ensure you are receiving the correct entitlements and conditions by law. 

There are four main types of employment that are found in the workforce. These include:

  1. Permanent full-time (38 or more working hours per week)
  2. Permanent part-time (less than 38 working hours per week)
  3. Fixed term contract
  4. Casual (flexible working hours)

Permanent and casual workers have different entitlements. Casual workers are less likely to have regular hours each week and cannot be guaranteed a set number of hours of work. Whereas permanent workers receive the same number of hours each week. See below for further details on the different types of employment. 

 

1. Permanent full-time employees 

If you are working an average of 38 or more hours per week and/or have a signed contract (it is not a requirement to have a contract) you are a full-time employee.

With full-time employment, you are eligible for certain entitlements, minimum wages and conditions.

These include:

  • four weeks of annual leave each year (paid leave whilst having time off work)
  • 10 days of sick or carers leave.

Another entitlement for full-time workers is that their employers must provide them with written notice when they decide to end the employment. A condition of full-time employment for the employer is that there must be a set maximum number of hours worked by an employee per week and generally it is 38 hours or more. However, this will be different depending on the industry and what award the work falls under.

An example of this is a hairdresser working under the Hair and Beauty Industry Award 2020 (‘the Award’). In a salon where business hours are Tuesday to Saturday, full-time employees are often required to work Saturdays. Under the Award a hairdresser is entitled to two consecutive days off each week or three consecutive days off in a fortnight. This means if they work every second Saturday, they will get Sunday, Monday and Tuesday off while still being a full-time employee.

 

2. Permanent part-time employees 

A part-time employee will work less than 38 hours a week, where the hours are fixed each week and can be permanent or on a fixed-term contract.

The same benefits apply to part-time employees as they do to full-time employees but the amount of leave a part-time employee will be on a pro-rata basis.

This means that a part-time employee who works 19 hours per week will be entitled to 50% of a full-time employee, that is two weeks annual leave and 5 days personal leave per year. 

 

 

3. Fixed term contract employees

Another type of employment for full-time or part-time workers, is that they hired on a fixed-term contract, unlike full-time permanent employees where they are employed on an on-going basis.

An example of fixed-term contracts, is that an employee can be given a 6 or 12-month contract and after that time their employment will finish. An employee may be a receptionist at a business and they are hired on a fixed-term contract basis for 12 months, working full-time. The employment will end after 12-months unless a new contract is provided.

The same entitlements and benefits of a full-time permanent employee apply to a fixed-term contract employee, including sick leave, annual leave, and minimum wage entitlements. 

 

 

4. Casual employment

Casual employment is a type of employment that does not have a firm commitment to ongoing work.

Casual employees will not have set days or hours of work per week, as it changes to suit the employer’s needs.

If a casual work job offer has been made and the terms say it will not continue indefinitely and the offer is accepted by an employee knowing of the no advance commitment, it is likely to be a casual employment position.

Some indications that your employment is casual:

  • the employer will choose to offer work and the employee can refuse, change or swap shifts if it does not suit
  • casual employees get paid a casual loading, which is a higher pay rate.

An example of a casual worker could be a hospitality worker at a restaurant. You are likely to be rostered a different number of shifts per week depending how busy the restaurant is. The employer of the restaurant will take down your availability of what days you can work each week and then you will be rostered on those days for the hours the employer chooses. 

Entitlements of casual employment are found under the National Employment Standards;

  • 2 days unpaid carer’s leave
  • 2 days unpaid compassionate leave per occasion
  • 5 days unpaid family and domestic violence leave (in a 12-month period) 
  • Unpaid community service leave.

 

Is it possible to change from having casual employment to being a permanent part-time or permanent full-time employee?

Casual conversion is the process of an employee converting their employment to be a part-time or full-time employee.

For more information on this, please see our fact sheet on: https://wwcsa.org.au/resources/casual-conversion/

 

“Sham contracting” – when independent contractors are actually employees

In some cases, a business may engage you as an independent contractor when in fact you are an employee. This can be classified as “sham contracting.”

Businesses often do this to evade paying superannuation, base award rates, casual loadings or weekend penalty rates.

There are many factors that are considered to decide if you are a true independent contractor or in a sham contracting arrangement.

An example of “sham contracting” may be a cleaner hired by a cleaning business for cleaning duties but they are told they an independent contractor under a contract. The general rights of an independent contractor are they can negotiate their own fees/rate of pay and can negotiate their own working arrangements for hours they work. Often they would have their own cleaning business and have multiple places they clean at. However, it may be a sham contract if the employer decides the pay, where the person works and what hours they do, etc.

This can be a complicated legal matter and if you are in this situation please contact us for legal advice on your specific circumstances.

For more information on Sham Contracting, please see our fact sheet on: https://wwcsa.org.au/resources/how-to-spot-a-sham-contract-in-a-job-advertisement/ 

WWC Summer Read Recommendations

 

This book recommendation list is compiled by WWC staff and volunteers to guide you on what to read during the upcoming holiday if you want to learn and reflect more about feminism and worker’s rights! 

Updated on 21 December 2021 

Disclaimer: Please note that this is general information and should not be taken as legal advice. Working Women Centre SA doesn’t own the copyrights of the following books. 

 

Invisible Women

by Caroline Criado Perez

All about how data excludes women in day-to-day life. pretty dense but easy to understand/read, has a chapter exclusively on work.

 

Dirt Cheap: Life at the Wrong End of the Job Market

by Elizabeth Wynhausen

Stories from an academic who went undercover in a number of ‘low-skilled’ jobs to see what life in that line of work was like.

 

Sex, Lies and Question Time 

by Kate Ellis 

Former Australian politician Kate Ellis explores the good, the bad and the ugly of life as a woman in Australian politics.

 

White Feminism

by Koa Beck  

About the knotted history of racism within women’s movements and feminist culture, past and present 

 

Hood Feminism

by Mikki Kendall

About how the mainstream feminist movement has failed to acknowledge the basic needs and issues that often plague women of color, including food security, educational access, a living wage and safety from gun violence. 

 

Can’t we all be feminists?

by Brit Bennett, Nicole Dennis-Benn and 15 others 

Intersectionality, identity, and the way forward for feminism.

 

The Testaments

by Margaret Atwood 

A sequel to The Handmaid’s Tale (1985). The novel is set 15 years after the events of The Handmaid’s Tale. It is narrated by: Aunt Lydia, a character from the previous novel; Agnes, a young woman living in Gilead; and Daisy, a young woman living in Canada.

 

Kim Ji-youngBorn 1982

by Cho Nam-Joo  

A novel. The life story of one young woman born at the end of the twentieth century raises questions about endemic misogyny and institutional oppression. 

 

The Great Believers

by Rebecca Makkai

A novel following the AIDS crisis in Chicago. Love, community and activism. This story will stay with you for life.  

Casual Conversion

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

Casual employment usually attracts a higher rate of pay. However, casual workers have no guarantee of ongoing work. They also miss out on important benefits such as paid sick leave and annual leave. For this reason, casual workers may want to convert their employment to part time or full time employment. This is called casual conversion.  

 

When should my employer offer me part time or full time employment?  

Your employer must offer you part time or full time employment if:  

  • your employer has 15 workers or more, and 
  • you have worked for your employer for at least 12 months, and 
  •  you worked a regular pattern of hours during the last 6 months of your employment.  

The offer must be in writing and state if you are being offered part time or full time employment. If the regular pattern of hours that you worked is equivalent to full time hours, your employer must offer you full time employment. If the regular pattern of hours that you worked is less than the equivalent of full time hours, your employer must offer you part time employment that is consistent with the regular pattern of hours worked during that period.  

Your employer must give you the written offer no later than 21 days after your 12-month anniversary of employment. You must respond to the offer in writing within 21 days of receiving the offer. If you do not respond, it will be assumed that you have declined the offer. 

Small business employers (less than 15 employees) do not have to offer conversion to part time or full time employment. However, small business employees still have a right to make a request to be converted to part time or full time employment.  

 

 

When can my employer decide not to offer me part time or full time employment?  

Your employer may decide not to offer you part time or full time employment if there are reasonable grounds to do so. Reasonable grounds not to offer part time or full time employment include the following:  

  • If your position will stop existing in the next 12 months, 
  • The hours that you will work will reduce in the next 12 months, and  
  • There will be a significant change in the days or times you are required to work, and your availability cannot accommodate that change.  

If your employer decides not to offer you part time or full time employment, they must notify you in writing no later than 21 days after your 12-month anniversary of employment. The notice must include details of the reason you were not offered part time or full time employment.  

 

Can I request to convert my casual employment to permanent part time or full time employment? 

If your employer does not offer you part time of full time employment within 21 days of your 12-month anniversary, you can make a request to convert your employment to part time or full time employment.  

Small business employers (less than 15 employees) do not have to offer conversion to part time or full time employment. However, if you work for a small business, you can make a request to be converted to part time or full time employment any time after your 12-month anniversary of employment 

You have a right to request to convert to part time or full time employment if: 

  • you have worked for your employer for at least 12 months, and 
  • you worked a regular pattern on hours during the last 6 months of your employment.  

Your request should be in writing and should specify that you are requesting to convert to part time or full time employment. Your employer must respond within 21 days of receiving your request.  

Your employer cannot refuse your request unless:  

  • They have consulted with you, and 
  • There are reasonable grounds to refuse the request, and  
  • the reasonable grounds are based on facts that are known at the time of refusing the request. 

 Once your employer grants your request or you accept an offer for part time or full time employment, your employer must discuss with you and provide written notice specifying:  

  • That your casual employment is being converted to part time or full time employment,  
  • The hours of work to be performed, and  
  • When the part time or full time employment takes effect (This is usually the first day of the next pay period).  

 

Can I challenge my employer’s decision not to offer me part time or casual employment?  

If your employer refuses to convert your employment and you believe there are no reasonable grounds to do so, you can challenge their decision.  

  • First, you should try to resolve the dispute by having a discussion with your employer. 
  • If your employment is covered by an award, or enterprise bargaining agreement, or employment contract that provides a procedure for dealing with the dispute, you must follow that procedure.  
  • If this does not resolve the dispute, you can ask the Fair Work Commission to resolve the dispute: 

If you are covered by an Award or Enterprise Agreement then you need to complete a Form 10. It can be found here https://www.fwc.gov.au/awards-and-agreements/awards/interpret-or-enforce-award 

If you are not covered by an Award or Enterprise Agreement then you need to complete a Form 10A Application for the Commission to deal with a dispute about casual conversion. This can be found on the Fair Work Commission’s website on this link: https://www.fwc.gov.au/documents/documents/forms/form-f10a.pdf  

This form will need to be emailed to Fair Work Commission. If you are in South Australia, you can send the email to adelaide@fwc.gov.au 

 

Flexible Working Arrangements

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

How to:  Apply for a Flexible Working Arrangement?  

A flexible working arrangement is an arrangement where you work in a different or flexible way than you usually would.  It can include you starting and finishing work at different times, working shorter (or longer) hours or at a different location including working from home.   

 

Am I eligible to apply for a flexible working arrangement? 

Under the Fair Work Act  you can make an application for a Flexible Working Arrangement if: 

  1. You are a parent or have the responsibility for the care of a child who is school age or younger 
  2. You are a carer 
  3. You have a disability 
  4. You are 55 years or older  
  5. You are experiencing family violence  
  6. You provide care or support to either your immediate family, or a member of your household, and that person requires care or support due to them experiencing family violence  

You also must have 12 months continuous service with the employer prior to making a request for a Flexible Working Arrangement.  

If you are a casual employee, you can make the request if you have 12 months continuous service and that there is a reasonable expectation of continuing employment by the employer on a regular and systematic basis.  

 

How do I make the request?  

The request must be made in writing and set out the details of the change and the reasons for the change.  Use our template below to guide you.  

 

 

Template: Employee request for flexible working arrangements

[ Insert Date ]

[Insert your name ]

[Insert your contact details phone, email, address]

[Insert Job title]

 

Dear [Insert managers name]

Re: Request for flexible working arrangements 

I would like to request a flexible work arrangement under section 65 of the Fair Work Act 2009 (the Act).  

I am making this request because [insert choose from any of the applicable reasons in 1-6 above. You may have more than 1 reason to base your application on. For example: I am a parent/I am a carer/I have disability/etc ]

 [You may want to note, how long you have been working for.  For example:]

I have been working for this business for more than 12 months on a [full time/part-time or casual hours that are regular and systematic basis].  

I would like to start working [insert details of the changes you want.  For example: shorter hours, or on less days, or starting late or new equipment].  

I would like this flexible working arrangement to commence from [insert date] 

Any effect that this would have on the business and my colleagues can be accommodated by [insert details for the way in which it can be accommodated.  Basically here you are anticipating why your boss may reject the request, and providing a solution in advance.]  

It would be appreciated if you could respond to this request within 21 days in accordance with the Act.  

I am more than willing to discuss this request at a time that is convenient to you.  In addition, I am agreeable to discussing possible alternatives to make sure this arrangement can be suitable for both of us.  

Thank you in advance.  

 

[Insert your name]  

Sexual harassment case studies

Case Summaries

Sexual harassment in the workplace is an ongoing and increasingly publicised topic. More and more women contact our centre daily to seek advice in relation to the legal avenues that may be available to them to seek a remedy for the unacceptable and intolerable behaviour they have experienced in the workplace.

Once a victim has gained the courage to seek advice on their legal options, the next question that usually follows is how does someone quantify a monetary settlement for the behaviours and conduct that person has been subject to?

The following case studies are based on leading sexual harassment cases. They give a brief summary of the facts by looking at the conduct and behaviours a complainant has experienced, the findings of the court in relation to the said conduct and lastly the rulings and compensation awarded by the courts.

 

Important:

Please note these cases summaries should not be taken as legal advice.
If you require legal advice or are concerned about a matter regarding sexual harassment please call our centre on (08) 84106499.

Hill v Hughes

Ms Hill was awarded $170,000 in compensation for loss and damages.

Facts:

  • Ms Hill was admitted to legal practice in April 2015 and in May 2015 began working with Mr Hughes (Principal Solicitor) of a small legal firm.
  • Mr Hughes was physically and emotionally attracted to Ms Hill.
  • Ms Hill was involved in an ongoing mediation with her ex-husband. Mr Hughes offered to represent her and she agreed.
  • Ms Hill disclosed a lot of personal information to Mr Hughes so he could represent her including details of her relationship with her former husband, her children, past relationships with men and her dealings with an apprehended violence order.
  • The night before the mediation, Mr Hughes called Ms Hill and expressed his growing feelings towards her. This made her feel apprehensive and uncomfortable. She said nothing and ignored his comments.
  • Mr Hughes had a matter he needed to attend in Sydney for work and asked Hill if she would like to be of assistance and go to Sydney with him on 24 July 2015.
  • On 17 July 2015 an email was sent to Ms Hill regarding accommodation in Sydney. Additionally, the email contained several personal comments about his feelings for her. A further three emails were sent that day.
  • Ms Hill spoke to Mr Hughes and made it clear the Sydney trip was for work only and did not want a relationship with him.
  • Whilst in Sydney Ms Hill went to bed and found Mr Hughes laying on her bed in his underwear and a singlet. She asked him to “please leave” and felt upset and compromised both professionally and personally.
  • The next morning when Ms Hill had a shower, she returned to find Mr Hughes again in her room, laying on the mattress in her bedroom and asked him to “get out”.
  • Mr Hughes had on several occasions asked to hug her.
  • Ms Hill explained she was upset and told Hughes he had acted inappropriately.
  • Mr Hughes continued to send several persistent emails through July, August, September and October proclaiming his love for her and expressing that he wanted a future with her.
  • In June 2016, Mr Hughes sent an email bringing up Ms Hill’s inability to do her job, used the personal information he obtained when he was acting as a legal representative for her against her and said he could only afford to pay her two days a week.
  • Ms Hughes resigned.

Findings:

  • Respondent was dishonest and had been told not to send emails.
  • He took grave exploitation of the legal relationship as an advantage over her.
  • Mr Hughes saw the trip as an opportunity to begin a sexual relationship, by trying his luck.
  • The respondent on several occasions had tried to coerce the applicant to give him a hug. He did this by blocking the exit and making her feel as though she could not decline
  • His motivation for being in her room was entirely sexual (see her naked/watch her get dressed).
  • He only started to criticise her work and professionalism after he was rejected.
  • His emails/conduct were unwelcomed, offensive, humiliating, intimidating and distressing.
  • The spoken words, physical conduct and email communications were sexual harassment.

Damages:

  • Conduct was relentless, he took advantage of her vulnerability.
  • Threats he made were extremely distressing.
  • Harassment was unwanted, persistent and threatening.
  • General damages $120,000.

Aggravated Damages:

  • Threats of job loss were made to stop the applicant from making a complaint.
  • Respondents used privileged information he got while acting as her legal representative.
  • Mr Hughes said Hill was flirty and encouraged him.
  • Aggravated Damages $50,000.

Link to Decision:  

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2019/1267.html?context=1;query=[2019]%20FCCA%201267;mask_path= 

 

 

Evans v Pasadena Foodland and Crugnale

Ms Evans was awarded $30,000 in damages.

Facts

  • Ms Evans was working in the supermarket and Mr Crugnale also performed work there. The sexual harassment involved a pattern of inappropriate touching which eventually escalated to sexual assault.
  • Mr Crugnale deliberately brushed past behind Ms Evans on three occasions in one day.
  • Ms Evans said Mr Crugnale pushed his body up against hers and glided the palm of his hand between her buttocks as he walked past.
  • The third time he did this, she said she could feel something hard press up against her, which she thought could have been a belt buckle, or his erection.
  • Ms Evans reported the incidents and management reviewed the CCTV footage. They decided they saw “nothing of concern”. The security footage was destroyed two weeks later.

Findings:

  • Mr Crugnale had engaged in the conduct complained of and it was unwelcomed by Ms Evans.
  • A reasonable person having regard to all the circumstances would have been offended, humiliated or intimidated.
  • His evidence that the touching was accidental was not accepted and his conduct was found to be deliberate and of a sexual nature.

Vicarious Liability:

Ms Evans also claimed that Pasadena Foodland had breached its duty of vicarious liability and was responsible for Mr Crugnale’s behaviour because they had failed to appropriately implement/enforce their own sexual harassment policy.

Facts in relation to vicarious liability:

  • Ms Evans had asked an assistant store manager to check the security footage because she had been touched inappropriately, in addition to complaining to the HR Manager.
  • Neither the HR Manager or Assistant Store Manager took the complaint seriously and neither obtained a statement or record from her.
  • When the HR Manager viewed the CCTV footage, he did not observe a clear-cut instance of sexual assault so allowed the footage to be automatically deleted after fourteen days.
  • A couple of months after the last incident had occurred, Ms Evans spoke with the café manager who made a further complaint to the duty manager on her behalf.
  • The café manager then took it upon herself to investigate the complaint and recorded what was said by both parties.
  • It was recommended to the HR Manager that the issue be escalated to a formal investigation and the incident was raised with Mr Crugnale who volunteered to apologize.
  • The lack of action and insufficient investigation by Pasadena Foodland resulted in Ms Evans making a complaint to the police.

Findings:

Pasadena Foodland was found to be vicariously liable for Mr Crugnale’s conduct as they did not take reasonable steps to prevent Mr Cugnale’s behaviour. In was also found that Foodland failed to implement their own sexual harassment policy.

Compensation:

  • Ms Evans was entitled to compensation as she had suffered a psychological disorder, harm, suffering and hurt as a result of the sexual harassment.
  • Pasadena Foodland and Mr Crugnale were found to be jointly liable.
  • Ms Evans made a claim for workers compensation and received money for some of her medical expenses as well as lost earnings.

Link to Decision:  

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/sa/SAET/2019/222.html

 

 

Yelda v Sydney Water Corporation

MS YELDA RECEIVED $200,000 IN COMPENSATION.

Facts:

  • Ms Yelda was employed by Sydney Water and worked with field staff, which consisted of male workers.
  • Sydney Water had engaged Vitality Works to create a Safespine campaign for Sydney Water staff.
  • Ms Yelda agreed to have her photo taken for the campaign. A male colleague also had his photo taken for the campaign.
  • Vitality Works produced a poster of Ms Yelda smiling with her right arm outstretched above her head. She was pointing to the words “Feel great” and “lubricate”.
  • Sydney Water printed the posters and displayed them in the Sydney Water Ryde Depot, where it was placed just outside the men’s toilet and the civil delivery lunchroom.
  • Ms Yelda saw the poster and sent a complaint via email shortly after.

Findings:

  • The Tribunal found that the words “Feel Great-Lubricate” were big relative to the other words and that as a whole did not immediately suggest the intended meaning of spine safety. Colloquially the poster carried a sexualised connotation and had her image on it.
  • The conduct of displaying the poster was conduct of a sexual nature within the meaning of sexual harassment under the relevant legislation.
  • Because they chose Ms Yelda and not her male colleague, the court also found that Sydney water had discriminated against Ms Yelda on the ground of her sex.
  • Upheld on appeal.

 

Compensation:

  • $200,000
    • $100,000 from Sydney Water
    • $100,000 from  Vitality Works

Link to Decision:  

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCATAD/2021/107.html?context=1;query=Yelda%20v%20Sydney%20Water%20Corporation;%20Yelda%20v

 

Lee v Smith & Ors

Ms Lee was awarded $100,000 in damages

Please note that this case summary contains content referring to sexual harassment & rape, that survivors and victims of sexual assault may find upsetting. 

Facts:

  • Ms Leewas employed by the Department of Defence, which is an entity of the Commonwealth. Two of the perpetrators had more senior positions than Ms Lee.
  • Calendars of topless women and computer images containing pornography were readily visible to Ms Leein the workplace.
  • Mr Smith typed ‘Austin is a champion in the sack’ on a computer shared by him and Ms Lee.
  • Mr Smith wrote his phone number on Ms Lee’s writing pad and when asked why he had done that, Mr Smith replied that if Ms Lee ever wanted to go out with him she should call him.
  • Mr Smith told Ms Lee he would like to have sex with her. When Ms Lee rejected, Mr Smith said ‘you will be sorry’ in a threatening voice.
  • Ms Lee told Mr Smith that he wanted him to stop making advances towards her as she would continue to reject those advances, and this would cause tension in the workplace.
  • Mr Smith said he would continue to “perve” at Ms Lee’s “ass” when she walked past.
  • Mr Smith Left a note in Ms Lee’s drawer that said: “.. I think I want Austin sandwiches for lunch... (Happy face symbol) his meat between my two lovely thighs”.
  • Mr Smith wrote ‘I just ripped a hole in my jeans… I don’t have underwear onand ‘I can touch my penis through the hole’ on Ms Lee’s course notes. Miss Lee also observed that his penis was partly poking out of the hole in his jeans.
  • Mr Smith approached Ms Lee from behind, lifted the Applicant’s skirt, pushed himself against her and squeezed her buttock.
  • Mr Smith also obtained Ms Lee’s number from her personal file in the Resource management section and called her.
  • Ms Lee became intoxicated at the dinner and passed out. When she woke up the next day, she was in Mr Smith’s house and he was raping her.

Findings:

  • Mr Smith was found liable for l the sexual harassment leading up to the rape – the rape itself and the harassment following the rape. The employer  was also found to be vicariously liable

Links to decision 

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCA/2007/59.html?context=1;query=Lee%20v%20Smith%20&%20Ors;mask_path=

 

 

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 24 months respectively for these claims.

If you have been sexually harassed at work, firstly make sure you are safe and have support, and call us or your Union for legal advice about your individual situation.

Here are some common situations. Have a read and think about what you would do in these situations.

 

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).

My final pay – how much should I get?

Generally, when employment comes to end, you will receive one final pay with your outstanding wages and entitlements. It can be confusing figuring out what your final pay should include. This fact sheet will explain the different kinds of payments you may be entitled to.

This fact sheet gives general information about minimum entitlements for South Australian residents. You may be entitled to different or higher payments depending on your employment contract, registered Enterprise Agreement or Award, and legislation applicable to your State or Territory.

 

Your workplace entitlements

You can find out what your final pay should include by looking at your Award, Enterprise Agreement or employment contract.

  • Awards are legal documents that outline the minimum pay rates and conditions of employment for a particular industry or job type. The minimum rates and conditions in an Award are set by the Fair Work Commission. You can find your Award on the Fair Work Ombudsman’s Award Finder Tool.
  • Enterprise agreements are documents that contain pay and conditions negotiated between employees and employers, often with the help of unions. To be approved by the Fair Work Commission, they should contain better conditions and entitlements overall than an employee would be entitled to under an Award. You can check if your workplace has an Enterprise Agreement on the Fair Work Commission’s website.
  • If you have an employment contract, it can also contain further entitlements to pay or leave.

 

 

When should I get paid? 

Your Award or contract might specify when your final pay should be made, but generally this should occur within 7 days of the end of your employment. You should be provided a pay slip within one working day of the payment being made.  

 

 

Your final pay should include:  

 

Wages 

You should receive your wages for hours you have worked, including any applicable penalty rates or allowances.  

Annual leave 

If you are a permanent employee, you should get paid out for any annual leave you have accrued, but not taken, including annual leave loading if applicable.  

Your annual leave is generally paid out according to your base rate of pay. The base rate of pay doesn’t include any allowances, penalty rates, or bonuses.  

Again, check your Award, agreement or contract as it may include a greater entitlement, for example, to your ordinary rate of pay. 

If you work your notice period, your final payment should include the accrual of annual leave for this period. However if you are paid notice in lieu, instead of working your notice period, your annual leave will be calculated to your last day of work. 

 

What is notice?  

A notice period is the length of time that an employee or employer has to give to end employment. Not all employees have to give notice – for example, casual employees do not have to give notice when ending their employment.  

Notice in lieu 

If you and your employer have agreed that you don’t have to work your notice period, you should get paid the amount of notice you are entitled to under your contract or Award.  

If you have resigned, and haven’t given correct notice, your employer could be entitled to withhold payment equivalent to the period you haven’t worked, or one week’s notice, depending on your Award, agreement or contract.  

 

Long service leave 

Pro-rata long service leave 

If you have worked for more than 7 years for your employer, you may be entitled to be paid out your pro-rata long service leave.  

This is calculated at 1.3 weeks per year of service.  

If you have resigned and haven’t given correct notice, or if you have been terminated for serious and wilful misconduct, you are not entitled to payment for your pro-rata long service leave. (Check your local State or Territory legislation if you live outside of SA). 

 

Long service leave 

After you have completed 10 years of service, you are entitled to 13 weeks of long service leave. For each year you work over 10 years, you are entitled to a further 1.3 weeks.  

 

Accrual for part time and casual workers 

Accrual is the same as full time workers, however the payment is based on your ordinary hours worked per week. If your hours have varied, your payment is based on  your average weekly hours over the previous 3 years of service.  

You do not accrue long service leave during unpaid parental leave, or any other unpaid leave.  

 

 

Redundancy  

If you don’t believe your redundancy is genuine, contact us or your union for advice. 

If you have been made redundant, you may also be entitled to a redundancy payment. Redundancy is paid in addition to notice in lieu.  

A redundancy payment is based on your continuous period of service with your employer, and is paid at your base rate of pay for your ordinary hours of work.  

Generally, periods of casual employment do not count toward your period of service, unless your Award of Agreement states otherwise. 

The following redundancy payments generally apply:  

Period of continuous service  Redundancy pay 
At least 1 year but less than 2 years  4 weeks 
At least 2 years but less than 3 years  6 weeks 
At least 3 years but less than 4 years  7 weeks 
At least 4 years but less than 5 years  8 weeks 
At least 5 years but less than 6 years  10 weeks 
At least 6 years but less than 7 years  11 weeks 
At least 7 years but less than 8 years  13 weeks 
At least 8 years but less than 9 years  14 weeks 
At least 9 years but less than 10 years  16 weeks 
At least 10 years  12 weeks 

 

Make sure you check your Agreement to check for any greater entitlement.  

 

When is redundancy not paid?  

You are not entitled to a redundancy if you your employment falls into the below categories:  

  • Your continuous service is less than 12 months 
  • You are employed under a contract for a stated period of time, a certain task, or an identified season 
  • If you have been dismissed for serious misconduct 
  • You are a casual employee 
  • You are an apprentice, or you are a trainee employed for the length of the traineeship agreement. 

You may also not be entitled to redundancy if your employment ends due to the “ordinary and customary turn over of labour”. This means that it is common and usual in your industry for employment to end this way. Call us or your union for further advice.  

 

Small business exception 

Sometimes redundancy payments are not payable by small businesses. A small business is defined by the number of employees (including yourself) at the time of the redundancy. A small business is a business of 15 or less employees. These 15 employees include 

  • Include regular and systematic casual employees 
  • Include employees of associated entities.  

Check your Award or enterprise agreement to see if different redundancy provisions apply. If you’re unsure whether you have been paid the correct entitlement, or have other questions about the redundancy process, contact us or your Union for advice.  

 

Expense claims 

If you are owed money by your employer to reimburse you for expenses you have incurred, make sure you follow your employer’s procedures to have these claims finalised and paid to you in your final pay.  

 

Your final pay may not include:  

 

Personal leave 

Sick leave or personal leave is not paid out, unless your contract or Agreement states otherwise. 

 

Flex leave / time off in lieu 

Check your contract or enterprise agreement for any entitlement to be paid out time you have accrued under a flex-time or time-off-in-lieu arrangement.  

 

What about super?  

Superannuation should be paid on any payment you receive in lieu of notice, as these are hours you would have worked and earned superannuation.  

Superannuation is not payable on any payments for unused annual leave, sick leave or long service leave.  

It is good practice to check that all other superannuation you are owed from your employment has been paid. Check your balance and all the ATO for more advice.  

 

What do I do if I haven’t been paid everything I’m owed? 

Firstly, discuss the issue with your employer, as it may just be a mistake or oversight. It is a good idea to write to your employer, so that you have evidence of the discussion.  

If your employer does not respond or if you cannot agree with them about the amount owing, read our Fact Sheet on Underpayments [link] to find out how to formally write a letter of demand to your employer and, if the matter remains unresolved, lodge an underpayment claim in the South Australian Employment Tribunal.  

Call us or get in touch with your Union for further advice on your situation.  

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.

 

For more information, read our Top 10 Tips for Self-Representing in the Fair Work Commission fact sheet. 

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 – see below for more information).
  5. 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.
  6. 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.

Interim Payments

[Section 32 of the Return to Work Act 2014]

You may be entitled to receive interim payments while you wait for your workers’ compensation claim to be processed. If you have waited more than 10 days for your claim to be determined you must be offered interim payments.  It is important to note that if your claim is rejected you may need to pay this money back. The agency will need to recover payments via debt recovery, [section 201] and it is unlikely that this will occur.

The debt recovery process occurs in the Magistrates Court of South Australia, for debts less than $100,000.00 and in the District Court of South Australia for debts exceeding $100,000.00. If the claim is for $12,000 and under the claim will be considered a minor civil claim. At the minor civil claims stage, you cannot be represented by a lawyer.

Recent changes to workers compensation in South Australia do not affect claims relating to psychological injury.

 

What if the sexual harassment has aggravated my pre-existing mental health issue? Can I still make a claim?

If you have been suffering from a mental health condition and the sexual harassment in the workplace has aggravated the injury, you still may be entitled to workers compensation for the aggravation. That is because the Return Work Act 2014 defines an injury that includes an injury that is, or results from, the aggravation, acceleration, exacerbation, deterioration or recurrence of a prior injury.[4]

[4] Return To Work Act 2014 section 4.

Important Extras to Remember

  • 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 10.5% (or the amount listed in your registered agreement) of the underpayment amount to your claim.

Your underpayment is calculated as follows: (legal entitlement) minus (actual wages paid) = (underpayment figure).

 

 

Case Study 

Phuong’s underpayment
*This case study is fictional, and is not based on a real person or  business.*

Phuong is a permanent part-time employee in a restaurant. She works 20 hours a week. She is paid $15 per hour.

Phuong’s duties include taking reservations, mixing and serving alcoholic drinks, waiting on tables and helping to supervise junior staff. She examines the Restaurant Industry Award 2010, and realises that her duties are classified at “Level 3 – food and beverage attendant”. Under the Award, she should have been paid at $26.93 per hour during the day, $32.31 per hour on Saturdays and $37.70 per hour on Sundays and public holidays.

She goes through her payslips and her time sheets and calculates that over the period of her employment, she was paid $15,600. However, if she had been paid at the correct award rates, she should have been paid $26,603.

Phuong’s underpayment of wages is $26,600 (legal entitlement) minus $15,600 (actual wages paid) = $11,000 (underpayment figure).

She adds an additional 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 and may not be relevant to your particular matter. This toolkit should not be taken as legal advice.

Part I

Your employer may request you attend a disciplinary meeting to discuss allegations of misconduct or performance concerns. This is a reasonable and lawful directive; however, your employer needs to ensure they follow procedural fairness.

The toolkit below may assist you in navigating the process. If you have been called to attend a disciplinary meeting, you should take the following steps immediately:

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

Remember, your employer should provide you with at least 24 hours notice of a disciplinary meeting.

 

I have been stood down with pay, what does this mean & how long does this last?Your employer may stand you down with pay when they are investigating allegations concerning your performance or conduct. This does not mean your employer has decided to terminate your employment. Some workplaces have policies where they remove a person from the workplace while investigating allegations in order to prevent interference in the process and to minimise stress.

The stand-down period typically lasts until the investigation is finalised, and usually finishes when you are delivered with an outcome. It is important that you remain available to attend a disciplinary meeting during the stand-down period.

 

Can I reschedule a meeting?
It is not unreasonable to request a meeting be rescheduled if it falls on your rostered day off, outside of your working hours or if you are unwell and unable to attend. If you require more time to source a support person, this must be communicated as the reason why you are requesting to reschedule the meeting.

An employer may not agree to delay the meeting if they have already provided you with enough notice, or the allegations are very serious. If you are unwell and you cannot attend the disciplinary meeting, it is important that you obtain medical certificates and provide them to your employer.

 


Case Study:
Sarah works the night shift from 5:00pm to 5:00am. She is provided with a letter of allegation before her shift at 5:00pm, and requested to attend a meeting at 4:30pm the next day. Sarah is unable to contact a support person during her shift, and when she arrives home, must balance sleeping with calling a friend. Her friend is also unable to take time off from work on such short notice. Given Sarah’s circumstances, it would be unreasonable if her employer were to deny a request to postpone the meeting so that she can organise a support person.

 

What if my boss calls me in to talk but denies it is a disciplinary meeting?
Sometimes, employers call workers in for meetings but do not expressly use terms such as ‘disciplinary meeting’ or ‘allegations’. A useful way to find out whether a meeting is disciplinary in nature is to ask whether the meeting will have a disciplinary outcome. If your employer says it might, suggests they will let the Human Resources (sometimes called People and Culture) department decide or cannot give you a clear answer – there is a good chance you have been called into a disciplinary meeting. It is a good idea to treat it as such and take all the necessary precautions.

 

There is a list of allegations – How do I deal with them?
A disciplinary meeting is often held because allegations of misconduct have been raised with management. Your employer should provide you with clear allegations, preferably in writing to avoid misinterpretation. If the allegations are vague, you are entitled to request specific details such as the date and time of the alleged conduct, the nature of the conduct as well as which policies you are alleged to have breached. Generally, it is a good idea to ask for the allegations to be put in writing. This is best practice, but it will depend on the circumstances whether your employer will put the allegations in writing.

 

Case Study
Lin’s manager approaches her at work on Monday morning and asks her come into the office for a short chat. Lin finds out her manager is trying to hold a disciplinary meeting without any notice. Lin advises she will hear the allegations however will need sufficient notice to be able to respond and organise a support person. Lin’s manager schedules a meeting for the next day and provides her with the allegations in writing.

 

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

What happens in a disciplinary meeting?
Usually, your employer will read out the allegations and provide any additional evidence to you. They will then ask that you provide a response to the allegations. It is important that you hear all of the allegations before you respond.

What can my support person do?
Your support person can take notes and discuss the allegations privately with you. If you become overwhelmed and have trouble responding, a support person can clarify your responses for you. A support person’s role does not extend to answering the questions on your behalf.

How do I respond to allegations?

You are entitled to respond to the allegations raised and your employer must consider your responses when determining the outcome of the meeting.

When considering your responses to allegations, ensure you provide clear answers and only address the allegations raised. You can request your employer view CCTV footage if you believe it supports your responses. If your employer has mentioned reviewing CCTV footage, you can also request to view this before responding to allegations.

Some employers prefer written responses to allegations. Similarly, to the above, make sure you respond clearly and concisely.

It is also good to highlight a record of good behaviour or raise any mitigating circumstances which may have led to the incident in question.

It is important to respond honestly to allegations. It may be unreasonable for your employer to terminate you if you were late once, however they can dismiss you for serious and wilful misconduct if you behave dishonestly and lie.

You can request a short break in the meeting if you need to discuss the allegations privately with your support person, or if you become overwhelmed.

If you have grievances to raise about workloads or other matters, it is best to address these separately and independent to this process.

 

What if my boss raises other matters & allegations that I didn’t know about?
Your boss should stick to the allegations in the letter sent to you, or the allegations listed at the beginning of the meeting. If they raise anything else, you can politely flag that this was not brought to your attention and you will be unable to respond without further details.

Can my boss ask me vague questions?
Generally, your boss should ask specific questions instead of vague questions with open-ended answers.

Case Study
Priya is at a disciplinary meeting with her union support person, and knows only that the allegations concern a breach of company policy on acceptable standards of behaviour. Priya’s boss asks her to ‘take him through what happened on Tuesday’ and asks what she did at work that day. This is an unreasonable question because it could risk Priya further incriminating herself, and does not enable her to address any specific allegation. Priya’s support person reminds her boss that the question is very open-ended and that she is entitled to know the allegations before offering any response. Priya’s boss reconsiders his approach and provides her with the allegation of speaking rudely to a staff member, and asks her whether she interacted with her during her shift.

 

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

What will the outcome of the meeting be? Will I be fired?
A common myth is the ‘three strikes and you’re out!’ principle. There is no requirement for an employer to give three warnings before dismissing a worker, and similarly, there is nothing preventing an employer from issuing more than three warnings.

Each employer has a different approach to determining disciplinary outcomes. It is best practice for an employer to have a clearly defined disciplinary process to ensure both the employer and employee are aware of the processes in place when issues in the workplace emerge.

Employers may issue informal counselling for minor issues, and this outcome is similar to a verbal warning. Other employers operate on a written warning basis. You can dispute a written warning by writing to your employer, however this does not compel them to remove the warning from your file.

I have been asked to “show cause” – what is this?
Your employer may issue you with a show cause letter following a disciplinary meeting. This is common where the allegations are serious enough to warrant summary dismissal.

A show cause letter requires you to provide compelling reasons as to why your employment should not be terminated. This is usually provided once an investigation has been carried out and when you have provided a response to the allegations. This is a serious step and requires consideration when responding. It is important to draw on a record of good work performance and as well as any mitigating circumstances the employer should consider when determining the fate of your employment.

A show cause opportunity is an important step for the employer to take prior to terminating an employee, and if you have been refused an opportunity to show cause, it is important you contact the Working Women’s Centre as soon as possible.

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

I have been told that I will be placed on a performance improvement plan – what is it and what do I do?
If your employer has concerns about your performance, they may choose to issue you with a Performance Improvement Plan (PIP). This is a structured plan which aims at providing you with the support and training needed to successfully do your job, and should have clear performance metrics in place. For example, it would be unreasonable if one of the outcomes was to ‘be friendlier to colleagues’ because there is no tangible way to measure this. It would be reasonable if your employer required you to achieve a particular target which can be measured and examined.

You can request amendments to the plan in consultation with your employer and request further training if needed.

It is also important that your PIP includes catch-ups with your boss or manager – these should be a regular opportunity to discuss progress and any additional support you may need.

I don’t agree with the PIP – can I just ignore it?
It is very important that you follow your PIP – even if you disagree with the content. You can dispute your plan and work with your employer to change it to better reflect working conditions. The important thing is that you comply with the requirements.

Unfair Dismissal

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

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

This is a strict time frame. You should ensure that you make the application within 21 days (that is 21 calendar days). The first day of the 21 days, is the day after your dismissal.

 

Part 1 – Have you been unfairly dismissed?

We are committed to providing advice that you can rely on however the information in this toolkit is general in nature. If you’re unsure about how it applies to your situation you can call your union.

To find out more about unions, please visit www.actu.org.au

If you are not a union member, then call us on 08 8410 6499.

 

How do I know if I was unfairly dismissed?

You have been unfairly dismissed if:

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

 

1.The Dismissal

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

You will not be dismissed if you were engaged by a contract of employment for a specific time period, or for a specific task or season.

For example, if you were employed on a 12 month contract and at the end of this 12 month contract, you are not offered a new contract, that decision will not constitute a dismissal.

Courtesy of the Fair Work Ombudsman.

 

2. Criteria for harshness

In deciding whether a dismissal was unfair, the Fair Work Commission (FWC) will consider specific criteria for the harshness of the dismissal. The FWC will take into account:

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

 

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

If you are employed by a small business, then your dismissal will be considered with respect to the Small Business Code.

Definition: A small business is defined as an employer, who employs less than 15 employees.

If you have been dismissed by a Small Business then the Fair Dismissal Code applies. The Code can be found here:

https://www.fwc.gov.au/about-us/legislation-regulations/small-business-fairdismissal-code

 

4. Genuine Redundancy

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

 

What is a redundancy?

Redundancy can happen when an employer either:

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

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

The test for a genuine redundancy is:

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

If your redundancy does not fit the above criteria, then it is likely you will have a case for unfair dismissal on the basis that the redundancy is not a genuine one.

 

Examples of Genuine Redundancy

Restructure – Reduction in the number of positions:
Julie is working as a medical receptionist in a busy doctor’s surgery. Julie works with 4 other medical receptionists. Julie is the only medical receptionist to be made redundant. Julie’s duties are distributed among the remaining medical receptionists. This is very likely to be a genuine redundancy.

 

Downturn in Business
Lee Lin, is a print journalist and works for a major newspaper in Adelaide, South Australia. Over the last few years, there has been a significant reduction in sales of print newspapers and the board has decided to cut the newspaper from 40 pages to 30 pages. As a result, Lee Lin and another journalist have been made redundant. This is very likely to be a genuine redundancy as Lee Lin’s role is no longer required due to the downturn in business.

 

 

Examples of Non-Genuine Redundancy

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

Reasonable redeployment & a lack of consultation.
Priya is working as a graphic designed for the state government. The state government decides to outsource of all of its web content to a private graphic design company. Priya is told that her job no longer exists with the state government and her job has been made redundant. Priya was never consulted about this change. It is likely that this will not amount to a genuine redundancy and Priya could lodge and unfair dismissal application.

Sham Redundancies:
Sam has been working with an electrical company as an electrician for 9 months. At the Christmas party, Sam’s boss tries to kiss them. Sam refuses the advance and leaves the party straight away. Sam was due to return to work after the holiday close down period but the next day, receives an email notifying them of a redundancy. Sam knew that the boss has work lined up for the next year and believes that the redundancy was due to incident at the Christmas party. If there has been no downturn in work and the reason for the dismissal was Sam rejected the boss’s advances, the redundancy will not amount to a genuine redundancy and Sam will be eligible to lodge an unfair dismissal application.
*If you experience sexual harassment in the workplace, contact us for further advice.

 

Time period

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

This is a strict time frame. You should ensure that you make the application within 21 days (that is 21 calendar days). The first day of the 21 days, is the day after your dismissal.

There may be times where you are notified of your dismissal, but your final day of employment is not for some time (say 4 weeks later). In this case, the dismissal will take effect on your last day of employment.

Example
If an employee is given 4 weeks’ notice that they will be dismissed, and they work through the 4 week period – then the date that the dismissal takes effect will generally be at the end of that 4 week notice period. HOWEVER, if an employee receives 4 weeks’ pay in advance in lieu (instead) of working and is NOT required to work through the 4 week notice period – then the date that the dismissal takes effect will generally be the last day worked unless the employer specifies a different date of dismissal.

Example: Courtesy of the Fair Work Commission.

 

 

Can I lodge an Unfair Dismissal Application?

Length of service The law provides that you need to have completed a minimum period of service to be eligible to make an unfair dismissal application.

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

If you have not been employed for at least the minimum period, you will not be eligible to make an unfair dismissal application. Time period Can I lodge an Unfair Dismissal Application?

If you are still confused as to whether you are eligible to lodge an unfair dismissal, please take the Fair Work Ombudsman Quiz.

https://www.fwc.gov.au/termination-of-employment/unfair-dismissal/eligibility

 

Part 2 – Making the Application

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

 

You will need to complete a Form 2 – Application for Unfair Dismissal.
This can be found on the FWC website. At this link:

https://www.fwc.gov.au/content/rules-form/unfair-dismissal-application

This form will need to be emailed to the FWC.
You can find directions in the Form 2 about how to lodge this application. You can also complete the form using the online lodgment service using this link:

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

 

Filing the Application

Once you have completed the Form 2 you should email it to the FWC. Details for the FWC can be found here:

https://www.fwc.gov.au/disputes-at-work/how-the-commission-works/commission-offices/south-australia

You should receive a confirmation email from the FWC saying they have received your Application. In a few days you should receive a listing advice from the FWC that will give you a time and date for a conciliation conference. It is likely this will be in 3-4 weeks time.

 

Fees

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

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

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

 

Top 5 tips in completing your application form

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

 

Toolkit Part 3 – Conciliation conference

The Fair Work Commission (FWC) will hold a conciliation conference between you and the employer to help both of you come to an agreement. You can use the information below to help prepare for the conciliation conference.

On the date of the conciliation conference, a conciliator will call you from the FWC. The conciliator will be an impartial third party. The employer will be on the phone as well.

 

Overview of the Conciliation conference

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

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

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

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

Should I resign?

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

Every day we receive phones calls from workers who have resigned from their employment because they genuinely could not face another day. We completely understand this situation; however, when a worker resigns from their employment, it can significantly impact on their ability to address the unfair, discriminatory behaviour that is causing the workplace issues.

There may be ways for you to address your issues internally and we can provide with you advice about this.

There also may be ways for you to address the unfair treatment through an external process, but there are occasions where resignation can bar you pursuing a remedy for the unfair treatment. That is, you may have an unfair dismissal, discrimination, workplace bullying or workers compensation claim. If you resign, it might be more challenging to pursue these types of claims.

 

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

If you are unable to attend your workplace, you might consider seeing your General Practitioner and discuss taking some time off work. It is generally important to obtain a medical certificate from your doctor certifying that you are unfit for work.

The National Employment Standards provide that full-time employees have ten days of Personal Leave each calendar year (pro rata for part-time workers). If you have run out of personal leave, then you might consider applying to access your annual leave or long service leave. You might also consider using unpaid leave if you do not have any personal leave days left. Generally, a worker will need to apply to access unpaid leave, annual leave or long service leave. An application can be done formally (through a proscribed workplace form) or be a simple email making the request.

You do not need to apply for personal leave.

In most cases, it is better to take some time away from the workplace than it is to resign rashly.

 

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

There is a practice in many workplaces where a manager or human resources representative will advise and employee that they can either resign or face dismissal.

If you resign, you may be prevented from making an unfair dismissal claim.

If this is happening to you, ask your employer for some time to consider the ultimatum and get some advice immediately. In most cases, this is a reasonable request, and if reasonable, your employer should agree.  In some cases, it might be better that you resign. In other cases, your employer might be trying to avoid any consequences for their unfair treatment of you. It is very important that you seek advice before making this decision.

 

Where can I get advice?

If you are a union member, call your union.

If you are not a union member, then please feel free to call the Working Women’s Centre on

08 8410 6499

or using our toll free number

1800 652 697.

You can also submit an online enquiry on our website.

Please be aware that we may not be in a position to respond to your enquiry within 24 hour’s, but we will advise you of the waiting period when you first telephone or email us.

Dealing with Workplace stress – Workers Compensation

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

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

You have the right to be treated with respect and to be protected from stress and trauma at work.

Your job is one of the most important parts of your life. If you are not respected and protected at work it can make you unwell. You might notice feeling tired, withdrawn, easily upset, less interested in things you normally enjoy, nauseous, irritable, panicky, short of breath, or teary. You might find new difficulties in your personal relationships, or experience difficulty sleeping, a racing heart, a lower appetite, headaches, or stomach pain. Sometimes these feelings add up to what is called a psychological illness – like depression, anxiety, adjustment disorder, or post-traumatic stress disorder.

These are all very normal and common reactions to feeling disrespected or threatened at work. If you feel this way, you are not alone. Where can I get help?

 

Speak to a supportive doctor

Find a supportive General Practitioner (GP) if you do not already have one already and make them your regular GP. You should feel comfortable with and believed by your doctor. If you don’t, try seeing someone else.

You can talk to a GP in a language other than English. All GPs have access to phone based interpreters and some GPs consult in languages other than English. If you’d prefer to see a GP who speaks a language other than English, ask family and friends if they know of a doctor who consults in your preferred language or search online to find someone.

Make an appointment with your GP and tell them about your issue, keeping in mind that doctors are very used to talking with patients about stress, trauma, and problems at work. Talking with your GP can help you get better, and might also help with a workers’ compensation claim in future.

When you see a GP, ask about getting a mental health plan. As well as providing a pathway to better mental health, a plan can offer you access to cheaper psychology appointments.

 

Seek counselling

Speak with a psychologist or counsellor. Your GP can help you find someone suitable or you can search online to find someone.

Find out if you have access to free counselling or medical treatment through an Employee Assistance Programme (EAP) at work and use it if you do. Information about and EAP might be posted on a notice board at work, in documents you were given when you started work. You can also ask a colleague, your manager, or Human Resources.

If your issue involves sexual harassment, abuse, or domestic or family violence, you can call 1800RESPECT (1800 737 732) any time to speak with an experienced trauma counsellor.

 

Connect with your union

Join your union if you are not a member already. There is a union for every worker in Australia. Like insurers, unions may not be able to help with a pre-existing issue when you join, so it’s important to be in the union before you need help.

A union is an organisation made up of workers in your line of work. Unions are funded by workers, who pay membership fees, and they help workers to fight for and protect their work rights.

You can find out what union covers you by calling Australian Unions on 1300 486 466.

 

Use other supports

Reach out to friends, family, and colleagues. Tell trusted people about your issue and ask for their support. Be specific about what you need – like help caring for children while you attend counselling, or someone to take a walk with once a week.

You can also access a caring voice over the phone between 5pm and 11:30pm any day by calling the Lived Experience Telephone Support Service (LETSS) on 1800 013 755.

 

Take breaks

Take sick leave if you can and use the time to recuperate.

Make plans to take annual leave and allow yourself a total break from work.

Take your work breaks and leave the workplace during lunch if you can.

Try to minimise your access to work emails and phone calls after hours. Keep work screens out of the room you sleep in.

Consider whether or not any flexible work arrangements could help and might be agreeable to your employer. Changes might include a temporary reduction in hours, agreement to work some hours from home, or different start and finish times. Ask your union for help in seeking changes like these.

 

Look for new work

Apply for new jobs and ask to catch up with any friends or contacts who may be able to connect you with new work opportunities.

 

Take time for self-care

Check out the resources about mental health and work available at headsup.org.au. Use the exercise that deals with helpful and unhelpful thoughts whenever you feel confronted by something that happens at work.

Try some relaxation exercises. Breathing exercises, muscle relaxation, guided visualisation, and mindfulness meditation can help. There are many free phone apps that can help you to try relaxation exercises for the first time, as well as resources at beyondblue.org.au.

Take time every day to do one or more pleasurable things like going for a walk, taking a bath, reading in the sun, watching you favourite TV show, sitting under a tree, or calling a friend to talk.

 

Consider making a workers’ compensation claim

If you have an illness that is caused or contributed to by your work, you can claim lost wages, treatment costs, and in some cases, lump sum compensation. This is called a workers’ compensation claim. In South Australia, workers’ compensation claims are generally dealt with by Return to Work SA.

You can make a claim whether you are a part-time, full-time, casual, or labour hire worker. Sometimes you can even make a claim if you are a contractor or self-employed.

We encourage you to strongly consider making a claim about a work injury if it has already caused you to take sick leave, or if you feel your only option is to leave your workplace.

You should also consider whether or not you have access to income protection through, for example, your employer or superannuation fund, or if you have access to Centrelink payments.

 

What are the risks of making a claim?

Your employer will know about and see your claim. If you have time off work or are noticeably unwell, your colleagues will know something is wrong but they will only know you have made a claim if you or your employer tells them. You can ask your employer to honour your privacy by not telling colleagues about your claim.

Future employers will only know about your claim if you or your current employer tell them about it; there is no publicly available register of past claims. In Australia is unlawful to refuse to give a person a job because they have made a workers’ compensation claim in the past.

Your claim might be rejected. If this happens, you can challenge the decision. Your union or one of the services listed in this factsheet can help you with this. You can also talk with a lawyer.

When you make a claim, Return to Work SA will most likely ask for more information about your illness and its cause. Providing this information can be difficult and for some people, it will also bring up past difficulties or trauma.

 

In an emergency

Call 000 in an emergency.

If you want to speak with someone about a personal crisis or thoughts of suicide, call Lifeline on 13 11 14 any time of day.

If you need an interpreter, call TIS National on 131 450 (local charge applies) and ask to talk with Lifeline on 13 11 14.

The Mental Health Triage Service 13 14 65 can also help with mental health emergencies, any time.

 

Other helpful links

Claiming Worker’s Compensation

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

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

Claiming Worker’s Compensation

  1. Get advice
    From your union, a service or lawyer
  2. See your doctor
    And ask for a work capacity certificate.
  3. Fill in a claim
    and submit it to your boss or representative

Find a claim form here: https://www.rtwsa.com/media/documents/claim-form.pdf

Whos who?

Return to Work SA is an Insurer and Gallagher Bassett and Employers Mutual are claims agents. Your claims manager works for them.

Only you and your representative work for you.

Keep an up to date work capacity certificate
Keep seeing your doctor regularly to update your certification

Get advice before signing anything

Respond to reasonable requests
If you’re not sure if a request is reasonable, ask for it in writing by email and seek advice.

Communicate how it suits you
You have a right to an interpreter if you need one. You can also ask to communicate with your claims manager by email if you find speaking by phone stressful or to be contacted only via your representative. You have a right to refuse to be recorded.

Choose your doctor
 You have a right to see your own GP or other doctors for treatment. Don’t agree to have your employer attend medical appointments or speak with your treating doctor. You may be asked to see an unfamiliar doctor for assessment but can seek a second opinion if you disagree with them. You have a right to receive a copy of any medical reports made about you.

Prioritise self-care

The workers compensation claims process is stressful. Care for yourself by seeking counseling, support from family and friends. And taking time to do things you normally find enjoyable.

Prepare for claim rejection
Most stress claims are rejected in the first instance. Seek advice when you receive your rejection as the decision can be reviewed.

Speed up your claim
The insurer will attempt to make a  decision within 10 days however complex claims can take longer. If you are not receiving interim payments and you are unhappy with the delay, seek advice about expediting their decision.

Helpful services
The Working Women’s Centre SA

Young Worker’s Legal Centre

Your Union
There is a union for every worker in Australia. Unions can help you with a workers compensation claim and in many cases, offer you access to a workers compensation lawyer.

Call unions Australia on 1300 486 466 to find your union if you’re not a member already.

Other helpful links

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