The Info Hub
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The Cost of Sexual Harassment
If you’ve ever wondered what the cost of sexual harassment could mean to your organisation in dollar terms – we have an answer. In the case of Taylor v August and Pemberton Pty Ltd [2023] FCA 1313 it was $268,000.
In this matter, an employee in a jewellery store was subject to inappropriate conduct from her employer which included slapping her on the buttocks, frequent comments such as ‘you have a beautiful body’ and telling her that he had feelings for her. When the employee lodged a formal complaint with the Australian Human Rights Commission, the employer then accused her of theft and demanded the return of gifts he had given her.
The Federal Court determined that the employee was sexually harassed and had been victimized as a result of lodging a grievance. The damages awarded included $140,000 general damages for the sexual harassment, $40,000 for the victimisation, $15,000 in aggravated damages, $3,000 for future out-of-pocket expenses associated with her psychiatric disorder, $37,685 on account of lost earnings and $8,599 in lost superannuation, plus interest - a total of $268,000.
Whilst this is quite an extreme example, the significant financial restitution awarded to the employee sends a clear message of the seriousness with which cases of sexual harassment will be treated and that ensuring the welfare and safety of employees in the workplace lies squarely with the employer.
New Wage Theft Provisions
Wage theft is when an employer does not pay an employee the full amount of their entitlement. This can include paying less than the minimum wage, not paying overtime or allowances or miscalculating an annualised salary.
Under new laws that came into effect on 1 January 2025, any person who is found to have intentionally underpaid an employee has committed a criminal offence and could be subject up to a maximum penalty of 10 years imprisonment and/or the greater of three times the amount of the underpayment (if known) or $1.56 million. The penalty is even greater for an organisation.
Although genuine mistakes that result in wage theft will not incur a criminal penalty, they can have serious financial consequences. Ignorance of your obligations will not protect you from civil penalties. Please contact us for advice on steps you can take to minimise risks in your business.
February 2025
Pathway to Permanent Employment
If you have casual employees who have been employed for at least six months (12 months for small businesses) and they believe that they no longer meet the new casual employee definition (see article below), they may be in a position to notify you of their intent to change to permanent employment.
If you receive such a notification, it is your responsibility to respond to the request within 21 days, notifying them of their new status (part-time or full-time), new hours of work and the date from which the change will take effect. There are however circumstances in which the employer can refuse the request, including if:
the employee still meets the definition of a casual employee.
there are fair and reasonable operational grounds for refusal.
We encourage employers to be proactive in this matter by reviewing the status of existing casual workers to determine whether or not they meet the new definition. Please don’t hesitate to contact us if you require assistance in this matter.
November 2024
Casual Employment Definition Update
In addition to the 'right to disconnect' laws that come into force on 26 August 2024 (see article below), the Fair Work Ombudsman (FWO) has also introduced on this date new definitions for casual employees which state that a person is considered to be a casual employee if, when they start employment:
the employment relationship has no firm advance commitment to ongoing work, taking into account a number of factors; and
they’re entitled to a casual loading or specific casual pay rate under an award, registered agreement, or employment contract.
If you have new casual employees commencing from 26 August, you should consider the two statements above in determining whether they are a true casual. You can find further information about these changes on the FWO website at this link or feel free to contact us for advice specific to your business.
August 2024
The Right to Disconnect
The 'right to disconnect' law will come into force on 26 August 2024 for businesses with more than 15 staff and one year later for small businesses. It will allow an employee to refuse to monitor, read or respond to contact or attempted contact from an employer (or third party) outside of working hours, unless the refusal is unreasonable. Determining what is unreasonable will be guided by circumstances specific to the role and working relationship. It is likely that contact during an emergency or relating to changing conditions for work (such as hours or location) will be considered reasonable.
If you would like advice specific to your business to prepare for these upcoming changes, please don't hesitate to contact us.
May 2024
Fixed Contract Rules
New rules came into force on 6 December 2023 as part of the Secure Jobs Better Pay legislation which limit the use of Fixed Term Contracts. Employers are prohibited from entering into a fixed term or maximum term contract where the period exceeds two years, or contains the right to extend or renew the contract more than once that exceeds two years, or where the contract continues the same (or substantially similar) employment relationship and work duties as a previous fixed term contract. Although there are some exemptions to the rules, it is important that organisations are aware of their obligations in this regard. There are significant penalties for taking action to avoid these rules. You are also required to provide any staff on a Fixed Term Contract with the new Fixed Term Contract Information Statement. If you would like advice specific to your organisation please contact our Senior Workplace Relations Advisor, Ed Thomas, at ed@cooperhardiman.com.au.
January 2024