Australians working remotely pressured to remain contactable
A new report has revealed emerging trust issues between managers and their staff when working away from the office.
ELMO Software’s Employee Sentiment Index report found that 61% of managers feel the need to check in with their direct reports more frequently when they’re working from home or remotely. But this practice seems to have consequences for workplace trust and work-life balance for employees, according to the report. While 25% of Australians feel fully trusted when working onsite, this drops to 21% when they are working remotely. In fact, the pressure from managers is making 63% of workers feel that they need to be “always contactable” when they are not working in the office.
“Building trust is easier said than done and it must be an ongoing process that extends beyond the manager’s responsibility,” Joseph Lyons, CEO of ELMO Software said in a statement. “It begins with providing role clarity and performance expectations, and equipping managers and employees with the right goal setting and performance management tools and processes to focus on outcomes, rather than outputs.”
This pressure to feel “always contactable” will likely see changes with the new right to disconnect legislation; ELMO’s initial findings revealed that 41% of employees will feel more comfortable ignoring out-of-hours calls. But Lyons said the legislation alone is not a silver bullet to combat the “always on” culture in workplaces. “Managers need to ensure working hours are being used efficiently and effectively and take steps to promote the benefits of disconnecting form work after hours, which will ultimately improve both productivity and overall employee wellbeing,” he said.
Worker applies for anti-bullying order after termination: Can it proceed?
The FWC recently dealt with a case involving allegations of workplace bullying and subsequent termination of employment. The matter highlighted the interplay between anti-bullying applications and general protections claims, shedding light on the Commission’s jurisdiction in such cases.
In this case, a worker lodged an application with the FWC, alleging bullying behaviour by three individuals during her employment. The worker argued that her application should not be dismissed despite her termination, citing unresolved factual issues and her intention to dispute the dismissal through a separate claim. She argued that if reinstated, the risk of bullying would persist, making her current application relevant.
After consideration of both parties’ arguments, the FWC decided to dismiss the anti-bullying application based on two key points:
- The FWC’s power to make anti-bullying orders is contingent on there being a risk of continued bullying at work. As stated in the decision: “If the Commission is not satisfied there is a risk that [the worker] will continue to be bullied at work by the individual or group of individuals, the application must fail.”
- The FWC found that the possibility of the worker being reinstated was too remote to justify continuing with the anti-bullying application. The decision noted: “There is no evidence supporting the assertion that [the worker] will be reinstated that would satisfy me that the application should continue, other than the mere existence of the General Protections application itself.”
In conclusion, the FWC dismissed the anti-bullying application under section 587(1)(c) of the Fair Work Act, finding that it had no reasonable prospects of success due to the lack of ongoing risk of workplace bullying.
Privacy reforms leave workers’ sensitive information exposed
A proposed overhaul of privacy laws does not go far enough to stop employers demanding invasive medical tests from prospective employees, warns a new report by the Australia Institute’s Centre for Future Work. It interviewed workers in the mining and resources sector who were told they needed to provide blood samples, including to assess cardiovascular risk and to meet undefined ‘legal obligations’, to be considered for work.
The report, No blood – No job, warned the government’s proposed changes to the Privacy Act did not go far enough. It called for further reforms to strengthen workers’ rights to withhold sensitive personal information from employers. Key points include:
- Workers applying to work on mine construction sites, and in oil and gas exploration, were told the tests may relate to cardiovascular risks or to meet undefined legal obligations.
- In one instance, a worker was required to undergo a blood test when transferring between companies even though they would be doing the same job at the same location. After undergoing initial blood tests, one man was required to undergo further testing at his own cost.
- Workers were asked to sign consent forms that placed no restrictions on the use of the information provided to the company.
Employees open to sharing their data for better experience
According to a new report from Qualtrics, employees across the world appear to be more comfortable in allowing employers to analyse data from their direct messages than what HR leaders initially assumed.
The report, which surveyed 1,000 desk-based workers and 100 HR leaders in 7 countries, looked into employees’ comfort when it comes to the practice of passive listening. Passive employee listening, as stated by Qualtrics, has been a proposed solution to improve employee feedback.
The practice involves the use of artificial intelligence to collect and analyse “unsolicited and unstructured data” that employees generate as part of their daily activities, such as declining a meeting, answering a question in a public channel, or emailing a customer. “Passive listening allows employees to raise topics that don’t show up in employee surveys and open up new lines of communication,” said Benjamin Granger, Chief Workplace Psychologist at Qualtrics, in a statement.
According to the report, 61% of employees are open to employers analysing their direct messages to improve employee experience. This is much higher than the 45% of HR leaders who estimated employee comfort, a significant difference of 16 percentage points. More than half of employees further answered that they are comfortable in having their emails (64%), group public messages (61%), and group private messages (54%) analysed. This is also higher than what HR leaders initially estimated.
However, the report also noted that employees who trust their senior leadership are also more likely to share their data than those who don’t (55% vs. 53%). There are also concerns among employees on invasion of privacy, data security, and misinterpretation of data. “Trust is foundational in developing a mutually beneficial relationship between employees and organisational leaders,” Granger said. “This is especially true when it comes to introducing new programs and technologies. Leaders can build trust by highlighting how individual employees will benefit and providing ongoing transparency and autonomy over their data.”
Psychological injury claims on the rise across the public sector
The term ‘psychosocial disease’ is being increasingly heard right across the public sector, playing out with a sharp rise in compensation claims through Comcare. This might come down to the fact there is abundantly more information being distributed about psychosocial disease, and also that changes to the WHS laws are making it easier for workers to claim for such injuries.
The 2024 Comcare National Conference held in Canberra this week revealed statistics to prove that when it comes to psychosocial injury at work, the focus must be on prevention. A reduction of just 5 psychological claims this year would lead to an expected cost saving of $1.75 million.
General Manager of Comcare’s scheme Michael Duke told the conference that the rise in psychological disease claims requires an evidence-led approach to mental health. A psychosocial hazard is anything that could cause psychological harm; in other words, harm to someone’s mental health. Common psychosocial hazards at work include job demands, low job control, poor support, lack of role clarity, poor organisation change management, and inadequate recognition. These things are what more employees in the private and public sectors are increasingly claiming injury over – with a particular increase noticed in the public sector.
The reduction in physical injuries over the past three years is equivalent to savings of close to $20 million in the sector – amounting to an average of 83 fewer physical injury claims per year. The same saving could be made by reducing psychological injury claims to 19 per year over three years. The design and management of workloads and a better focus on workplace interactions are two areas where steps can be taken to reduce psychosocial hazards.
Key legislated changes to the claims process include a less onerous claims process for the first respondents in the scheme who are suffering from post-traumatic stress disorder. Another is that first responders diagnosed with PTSD no longer have to prove their condition was substantially contributed to by their jobs.
New right to disconnect legislation
The right to disconnect laws commenced on the 26 August as a result of amendments to the Fair Work Act 2009 made by the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024. More details at: https://www.fairwork.gov.au/employment-conditions/hours-of-work-breaks-and-rosters/right-to-disconnect
Former Swillhouse staff allege harassment and discrimination
Sydney hospitality group Swillhouse is facing allegations of discrimination and harassment from a number of former staff members. The Sydney Morning Herald published a two-part investigation last week that detailed concerning allegations made by five women, who say they were sexually assaulted and harassed by fellow colleagues during their time working at Swillhouse venues. The women allege they were subsequently pushed out of the company after reporting the assaults to the management team.
Alongside the alleged sexual assault and discrimination, the list of allegations made against Swillhouse include: sexualisation of female patrons, encouraged use of alcohol and drugs on shift, and a culture of encouraging staff to have sex with patrons on shift. Two of the five women who participated in the investigation have since come forward and identified themselves.
The group published an apology on Instagram addressing the “distressing claims” on Thursday night. The post also announced that Swillfest will be cancelled and ticket holders would be refunded. Comments for the post have been turned off. SafeWork NSW is currently investigating the allegations.
Judgment a ‘great win’ for transgender women
In a landmark judgment handed down, Justice Robert Bromwich found that transgender woman Roxanne Tickle was indirectly discriminated against by Giggle for Girls, a “women’s only” social media app, and Chief Executive, Sally Grover.
Giggle for Girls and Grover were ordered to compensate Tickle in the sum of $10,000 and to pay costs capped at $50,000. However, Justice Bromwich stopped short of granting Tickle’s request for an apology, finding it would only be “futile and inappropriate to require an inevitably insincere apology to be made”.
Professor Paula Gerber, with Monash University’s faculty of law, said the decision was a “great win” for transgender women. “This case sends a clear message to all Australian women that it is unlawful to treat transgender women differently from cisgender women. It is not lawful to make decisions about whether a person is a woman based on how feminine they appear,” Gerber said.
After submitting a photograph of herself in February 2021, an artificial intelligence software designed by Grover’s father to detect men determined Tickle was female and allowed her access to the app. However, sometime in September or early October that year, Tickle logged on to find she could not comment on posts, could not see other user’s comments, and received the message “blocked user” when she attempted to pay for premium access through the app. Given that the company routinely has a person review photographs, Justice Bromwich said it was “most likely” a natural person – and possibly Grover herself, although it was never confirmed – had blocked Tickle’s access to the app’s features.
Giggle for Girls and Grover did not deny kicking Tickle off and instead challenged the validity of the gender identity discrimination positions that were inserted in the Sex Discrimination Act in 2013. The respondents also opposed the submissions made by the Australian Human Rights Commission, which joined as an intervener only to assist the court in understanding key legal terms.
In submissions, Giggle for Girls and Grover argued that the word “man” can only mean adult human male and that the word “woman” can only mean adult human female, and they did not accept that this could change. The court found the way they ran their case only “tended to help Tickle to establish indirect discrimination”.
Tickle advanced an allegation of direct discrimination on the grounds of gender identity, but Justice Bromwich said there was no evidence that Giggle for Girls or Grover knew Tickle was a transgender woman. “That claim of direct discrimination by reason of not being readmitted to use the Giggle App suffers from a shortfall of evidence establishing Ms Tickle’s messages made the respondents aware of her gender identity, and that there was no response to Ms Tickle’s inquiries by reason of her gender identity,” Justice Bromwich said.
‘Sexy Santas’ stunt at Seven West media stirs pot amid ongoing misconduct allegations
Seven West Media is once again under fire in the media – this time for an allegation of female dancers dressed up as “sexy Santas” featuring in a staff meeting.
The allegation was first reported in the Australian Financial Review on Monday, as the television news network is grappling with the fallout of a major investigation against the network for alleged misconduct in the workplace. According to reports, a meeting was held at Seven West Media headquarters in Perth on Friday to welcome new appointments to the team, including Sarah-Jane Tasker as the first female editor and Adrian Lowe as the first LGBTQIA+ boss of the weekend newspaper, The Sunday Times. Chris Dore was also appointed as the new editor-in-chief at The West Australian newspaper. The meeting was also to discuss upcoming programs, including Perth’s annual Christmas Pageant on December 7.
As deputy news director Ray Kuka began discussing the upcoming program, reports say he was interrupted by Mariah Carey’s All I Want For Christmas Is You blaring through the speakers. Women dressed up as “sexy Santas” – wearing Santa hats and short red dresses – appeared on the stage to dance in front of the staff members in the meeting. Some staff were so shocked they walked out of the meeting in protest, according to reports.
Ending gender-based violence: Do not overlook older women and women with disability
Gendered violence is a national emergency. Last Wednesday, Domestic, Family and Sexual Violence Commissioner Micaela Cronin stated in her National Press Club address that Australia needed to take threats of gendered violence as seriously as it takes terrorist threats.
The urgency of the need to take real action was also reflected in the Report of the Rapid Review of Prevention Approaches recommendations released last Friday. Gendered violence does not discriminate. It can impact all women, but older women and women with disability in particular are often overlooked and invisible in current conversations about violence against women in Australia.
Age Discrimination Commissioner Robert Fitzgerald said the experiences of older women and women with disability tend to be underrepresented in the reporting on gendered violence. “Based on police data regarding reported assaults, in most states and territories, between 37% to 51% of persons over 65 were allegedly assaulted by a family member or intimate partner,” he said. “Older women are more likely to experience abuse than older men, with over 65% of reports received by the NSW Ageing and Disability Commission in the last quarter concerning older women. “For some older women, this represents the continuation of a lifelong pattern of family violence. Any effective policy response to gendered violence in Australia must consider the unique needs and circumstances of older women, ensuring that support services are accessible and that adequate provisions are made for their safety and well-being,” said Mr Fitzgerald.
Disability Discrimination Commissioner Rosemary Kayess said: “Evidence from the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability revealed that women with disability experience domestic violence at about twice the rates than women without disability, and are more likely to experience sexual assault, stalking, violence or emotional abuse from a partner. “Intimate partner violence can also include specific and unique forms of violence, such as withholding personal supports, interfering with assistive devices, controlling access to mobility, communication aids or medication. “The specific experiences of women will intersect with factors such as age, disability, race, indigenous identity and LGBTIQA+ status, along with other personal circumstances – socioeconomic status, visa status, and geographic location. Violence prevention and response measures must be able to address intersectionality and personal circumstances to adequately address gendered violence against all women,” said Ms Kayess.
Every element of government action against intimate partner violence – be it services, action plans, laws and policy – must recognise the needs of older women and women with disability in all their diversity – and centre their voices in the development and implementation of policies that affect their lives.
Sacked employee sues UniSuper and CIO for alleged bullying
A former investment manager at UniSuper alleges his boss, longstanding Chief Investment Officer John Pearce, bullied and threatened his job while he worked at the fund and ultimately sacked him illegally. Matthew Hook claimed Mr Pearce told him to “smarten up your attitude or you’re out” and that he would “be pleased to see him go” in a series of conversations in March 2022.
He applied to stop the alleged bullying in the Fair Work Commission (FWC), but dropped the case and was fired within days, according to documents filed with the Federal Court. Mr Hook is suing UniSuper over the alleged bullying, claiming he was unfairly denied bonus payments and illegally dismissed. He told the court he did not yet know how much he had lost as a result of the saga but that he wanted damages and a penalty against the fund.
UniSuper denied most of the allegations in its defence in the matter, saying it fired Mr Hook because he was allegedly unwilling to follow reasonable orders, belittled a junior employee, and did not do critical parts of his job.
As part of the case, which goes to trial next month, Mr Hook said Mr Pearce told him he had “a bad attitude” and to “work on” it. “If I hear of any trouble from you, I’m walking you out the door,” Mr Pearce was alleged to have said in one conversation. “This is not a conversation, you are going to listen.” UniSuper conceded Mr Pearce told Mr Hook the job market was tight and he should consider other opportunities if he was given them, and that it was not a conversation and he was to listen. But it denied any other statements.
Mr Hook said this alleged bullying caused him “hurt, humiliation and distress”. He also claimed UniSuper and Mr Pearce unfairly denied him his full bonus payment in the year it sacked him, saying they refused to discuss the most successful elements of his investment portfolios with him then cut his bonus despite strong returns. He said the bonus was “unusually low” compared to prior years despite “outstanding” returns in two of his portfolios. He was paid a gross salary of $246,000 by the time he finished at the company, plus a bonus of up to 40.5 per cent based on performance and behaviour.
Mr Hook also claimed his dismissal was illegal because it followed and was in response to his abandoned bullying application and complaints about his treatment and bonus. He said the fund told him he was fired “now that [he] had ended the [Fair Work Commission] bullying application” because it had “lost faith and confidence” in him.
But UniSuper said in its defence the “loss of trust and confidence developed over time”. It denied the termination was because the bullying claim ended, saying Mr Hook had been unwilling to accept and follow the reasonable directions of his superiors, fulfil critical parts of his role and be a team player. It said this included an “unwillingness to … [behave] appropriately in relation to more junior colleagues”.
UniSuper said examples included failing to rebalance a portfolio, presenting unapproved slides to the investment board committee, and challenging decisions about IT. It told the court Mr Hook’s bonus reflected that while he “exceeded expectations” for his investments’ performance, he was “below expectations” in terms of his behaviour. The defence, which was filed on behalf of both UniSuper and Mr Pearce, also denied the bullying allegations.
Mr Hook is demanding damages worth five years’ salary and bonuses and compensation for the hurt and distress, though he said any other paid work he did in that time should be deducted from the total. He also wanted the court to order UniSuper to recalculate his final bonus, saying it should be about $26,000 more.
‘Chinese spy’ and ‘Mr Corona’: Worker cries racism at work
The Human Rights Division of the Victorian Civil and Administrative Tribunal (VCAT) recently dealt with an employment discrimination case involving multiple parties and overlapping legal jurisdictions. The case centred around a worker who alleged discriminatory treatment by his former employer and colleagues, as well as improper handling of his complaints by government agencies. Among the worker’s claims was an allegation that he had been called a “Chinese spy” by a co-worker, highlighting issues of racial discrimination in the workplace.
The worker in this case had been employed by a major logistics company, a subsidiary of the Australian Postal Corporation, from May 2017 until his dismissal in September 2021. During his employment, he raised several concerns about workplace practices, including allegations of smoking in prohibited areas, unsafe working conditions, and racial discrimination. These complaints led to a series of investigations and legal proceedings across multiple forums.
The VCAT application named five respondents: two of the worker’s former managers (a duty manager and an employee relations officer), his former employer, and two Comcare employees (a manager and an inspector) involved in investigating his complaints. The worker’s primary allegations included:
- Discrimination based on his status as a “whistleblower” for raising workplace concerns
- Racial discrimination, including being called a “Chinese spy” and “Mr Corona” by colleagues
- Victimisation and unfair treatment in response to his various complaints and legal actions
- Improper handling of the Comcare investigation and report by both his employer and Comcare staff
- Unfair dismissal related to his whistleblowing activities
The worker claimed that after reporting breaches of anti-smoking laws, he was transferred to a different work area where he experienced racial comments and unsafe working conditions. He also alleged that his workload was deliberately increased as retaliation. The respondents sought to have the application summarily dismissed, arguing that many of the claims were outside VCAT’s jurisdiction, had already been addressed in other forums, or lacked sufficient substance to proceed.
The Tribunal considered whether the worker’s “whistleblower” claims could be framed as discrimination based on “employment activity” under the Equal Opportunity Act. While noting that raising workplace health and safety concerns could potentially fall under this protected attribute, the Tribunal ultimately found that the Federal Circuit Court had already examined and dismissed similar claims:
“The Court found that [the employer] took [the worker’s] complaints and concerns seriously and addressed them through its management and application of relevant policies.” The Tribunal also noted specific findings from the Federal Circuit Court regarding the worker’s claims: “With respect to [the worker’s] claims that he experienced adverse treatment because he reported breaches of smoking policy, [the judge] found that [the employer] in fact took his complaints seriously and imposed steps on staff to stop them smoking in the toilets.”
The Tribunal accepted that racially discriminatory comments had been made to the worker, finding: “I accept that [the worker] had racially based remarks made to him and that he found them hurtful. I accept that he suffered a detriment because of these comments.” The decision provided context around these incidents, noting that one occurred on 12 February 2020 when a co-worker called the worker a “Chinese spy”, and another on 8 April 2020 when he was referred to as “Mr Corona”. However, the Tribunal also noted that the employer had investigated these incidents and taken appropriate disciplinary action: “[The employer] found the claim that he had been called a ‘Chinese spy’ to be founded and instituted a formal warning against the person who made the remark. [The employer] has followed its processes and it led to an outcome for the person who made the ‘Chinese spy’ remark.”
The significant delay in the worker bringing his VCAT claim (over two years after the incidents) also factored into the Tribunal’s decision not to allow this aspect of the case to proceed to a full hearing. A recurring theme in the decision was the interplay between various legal frameworks and jurisdictions. For many of the worker’s complaints, the Tribunal found that VCAT was not the appropriate forum to address the issues. For example, regarding claims about the handling of the Comcare report: “[The worker’s] concerns about [the employer’s] handling of the Comcare Inspector Report is a matter that is to be determined by the Fair Work Commission, and not a matter which I have any power to determine.”
State consults on restricting NDAs for workplace sexual harassment cases
The Victorian state government has begun consultation on laws to restrict the use of non-disclosure agreements (NDAs) in workplace sexual harassment cases. The consultation process will seek feedback on a number of potential protections against NDAs being used in such incidents. These include prohibiting NDAs unless requested by the complainant, ensuring no attempts have been made to pressure or influence a complainant to enter an NDA, and ensuring an NDA does not adversely affect others. It also includes providing ability for the complainant to decide to waive their own confidentiality in the future, review and ‘cooling off’ periods, and permitted disclosures (including to legal professionals, medical and mental health professionals, prospective employers, union representatives and support people).
Premier Jacinta Allan said that the legislation aims to prevent NDAs being unfairly used by perpetrators. The proposed legislation will be the first of its kind in Australia, and one of the first in the world. Legislating to restrict the use of NDAs in workplace sexual harassment cases was a key recommendation of the Victorian Ministerial Taskforce on Workplace Sexual Harassment.