Sexuality, gender identity, de facto relationships - now protected by the Fair Work Act

1.            Background

Since coming into operation on 1 July 2009, the Fair Work Act has protected employees (including potential employees) from discrimination based on various attributes.

Section 351 sets out the attributes, which include race, colour and marital status.

This provision prevents employers from taking “adverse action” against employees based on these grounds.

For an attribute to be protected by the Fair Work Act, it must also be protected by an anti‑discrimination law.  For example, discrimination against a person because of race is unlawful under the Racial Discrimination Act 1975.

In practical terms, adverse action usually means dismissal, suspension, pay cuts or discriminating between an employee and other employees.  Adverse action also includes action that “injures” employees - a term that has been defined as widely as to include the deterioration of an employee’s relationship with the employer.

2.            What has changed?

As of 1 August 2013, the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 came into effect, extending the grounds of discrimination in the Sex Discrimination Act and thus the Fair Work Act to include:

·                     sexual orientation,

·                     gender identity,

·                     intersex status, and

·                     relationship status.

3.            What is protected and examples of potential discrimination

Sexual orientation: an employee’s sexual orientation, whether this be sex, different sex or both sexes.

Example of discrimination: an employer of a gay club who does not employ heterosexual bar staff may be discriminating against potential employees on the basis of their sexual orientation.

Gender identity: an employee’s gender‑related identity, appearance, mannerisms or other gender‑related characteristics (whether by way of medical intervention or not), with or without regard to their designated sex at birth.

Example of discrimination: an employer with a uniform policy based on sex.

Intersex status: having physical, hormonal or genetic features that are neither wholly male nor wholly female, a combination of female and male, or neither female nor male.

Example of discrimination: an employer who requires potential employees to tick male or female on job application forms may be discriminating against potential employees who do not identify as either male or female.

Relationship status: as opposed to marital status, this includes de facto couples of the same or different sex.

Example: a retail employer who permits employees’ spouses to have a discount may be discriminating against employees in de facto relationships.

4.            What do you need to do?

These amendments to the Fair Work Act demonstrate its ongoing commitment to the protection of employees, and a broader recognition of evolving social attitudes.

As the Coalition’s election policy has not included proposed changes to workplace relations, we can expect these grounds of protection to remain even with a change of government on 7 September 2013.

We recommend employers inform and advise their staff about the changes. 

Key decision makers in human resources and upper management need to be well informed about what the new protected attributes cover and how this may affect the way your company is run.

A good starting point is to review and update all company policies – starting with the anti-discrimination and bullying policies and inform employees of their rights and responsibilities.

Emma Pollett-Sutton
Lawyer

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Amendments to the Fair Work Act

Important changes came into effect from 1 January 2013 in relation to the Fair Work Act. 

These changes include the renaming of Fair Work Australia as Fair Work Commission (“the Commission”).  Other changes include the following:

Unfair Dismissal

The time limit for lodging unfair dismissal applications increased from 14 to 21 days, for dismissals occurring from 1 January 2013.  

Also the Commission has been given additional powers to dismiss unfair dismissal applications and make cost orders against parties, lawyers and paid agents. 

General Protections

The time limit for lodging a general protections dismissal application was reduced from 60 to 21 days, for dismissals occurring from 1 January 2013.

This change standardises the time limit for lodging dismissal applications.

There continues to be a 6 year time limit on an application for a breach of a general protection where no dismissal results. 

Enterprise Agreements

Enterprise agreements cannot be made with a single employee and terms allowing employees to opt out of enterprise agreements are now prohibited. 

 

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Unfair dismissal and the Virgin Airlines case

A recent decision of the Fair Work Commission serves as a warning to all employers concerning the need to act fairly and the need to have a valid reason if an employer is contemplating a dismissal.

In a July 2013 decision of the full bench of the Fair Work Commission in Virgin Airlines v David Taleski  the Commission upheld a decision of Commissioner Cribb to reinstate a flight attendant.  Mr Taleski was dismissed by Virgin Airlines because he failed to comply with its requirement about his appearance and in particular, the length of his hair.

Mr Taleski had started to grow his hair long for religious reasons associated with the tenth anniversary of his mother’s death.  Mr Taleski had first been allowed to wear a wig as a temporary measure but was subsequently sacked when he indicated he was never going to change his hairstyle to comply with Virgin Airlines male dress code known as its  “Look Book”.

Mr Taleski was dismissed in circumstances where:

1.            He had worked with Virgin Airlines for 4 years.

2.            He had an unblemished employment record.

3.            He had a diagnosed mental health condition that prevented him from cutting his hair.

4.            He had attempted to comply with Virgin Airlines “Look Book” requirements by trying different hair styles and wearing a wig.

5.            He was prepared to wear a wig to comply with the in house “Look Book” and to provide Virgin Airlines with his doctor’s clinical assessment and diagnosis and to continue to undergo treatment for his mental health issues.

6.            Virgin Airlines did not consistently apply its grooming requirements, as another employee had at an earlier time, been given an exemption from the code for its Look Book requirements..

The full bench of the Fair Work Commission upheld the initial decision that Mr Taleski had attempted to comply with its hair dress code, and was not given an opportunity to respond to any valid reason for his dismissal, because the decision to terminate his employment was made before he had an opportunity to respond.

The lessons for all employers arising out of this decision include:

1.            Do not insist on strict compliance with grooming codes or dress standards if to do so would on medical evidence cause severe stress.

2.            Do not predetermine an outcome (i.e. decision to dismiss) before putting the allegation formally to the employee.

3.            Apply codes and dress standards consistently between all employees.

Philip Brewin
Accredited Workplace Relations Specialist

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Leave loading payable when employment ends

If your employees are entitled to leave loading when taking paid annual leave, that loading may be payable on termination if employees have untaken annual leave.

The minimum entitlement to annual leave is set out in the National Employment Standards of the Fair Work Act 2009.  They provide for leave to be paid at base rates of pay. 

Section 90(1) of the Fair Work Act states:

If, in accordance with this Division, an employee takes a period of paid annual leave, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.

Modern awards and enterprise agreements may provide for paid annual leave to be calculated on a formula greater than the base rate of pay.

Section 90(2) of the Fair Work Act states:

If, when the employment of an employee ends, the employee has a period of untaken paid annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.

Mr Ryan was a mining operator with Whitehaven Coal Mining Pty Ltd, who resigned his employment after two and a half years.  At that point he had untaken paid annual leave.

Clause 14.1 of the relevant enterprise agreement stated:

Employees are entitled to five weeks annual leave per year, accruing progressively.  For periods of annual leave, employees will be paid the greater of: - their ordinary time rate of pay and an annual leave loading of 20%; or -  the projected roster earnings. 

When Mr Ryan resigned Whitehaven paid Mr Ryan his accrued paid annual leave calculated at his base rate of pay.

He contested that decision in the Local Court of New South Wales.

He argued that on the plain meaning of the words in section 90(2) of the Fair Work Act he should have been paid the 20% loading (or the projected roster earnings).

In response Whitehaven argued that upon termination Mr Ryan should be paid his accrued but untaken annual leave at his base rate of pay relying on clause 14 of the enterprise agreement which said:

           Leave

Entitlements to leave are in accordance with the entitlements set out under the applicable FW Act provisions and the provisions of this agreement set out below.

It argued that this meant that an employee’s entitlement to payment of accrued but untaken annual leave upon termination was to be dealt with under the Fair Work Act and not the enterprise agreement applying to Mr Ryan.

The magistrate decided in favour of Mr Ryan agreeing that the plain meaning of section 90(2) of the Fair Work Act permitted his accrued entitlement to paid annual leave to be paid to him at greater than the base rate of pay because if he had remained with Whitehaven and taken the leave he would have been entitled to the greater of the 20% loading or the projected roster earnings.

The decision was handed down on 26 July 2013 and there is the prospect that Whitehaven will appeal it on a question of law to the Supreme Court of New South Wales.

In the meantime, however, it is clear that resigning or dismissed employees who have accrued and untaken paid annual leave, which is subject to a leave loading are to be paid that loading on termination of employment.

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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Pornography in the workplace - is this ground for automatic dismissal?

A full bench of the Fair Work Commission has recently found that three employees of Australia Post were unfairly dismissed even though it was proven that the workers had breached policies in relation to discrimination, harassment and the use of IT to access and share pornography.

The decision has surprised employers who had thought that if an employee breached a strict no dissemination of pornography policy that would be grounds to justify termination.
 

The majority of the Commission held that even though there was a valid reason to sack the employees, the Fair Work Act required an employer to still ensure that the sacking was not harsh, unjust or unreasonable.

The Commission illustrated the point by giving the example of a bus driver who was sacked for using a mobile phone whilst in charge of a bus. The bus company had a strict policy that drivers must obey the rules of the road and never use a mobile phone whilst driving. The bus driver’s wife was suicidal and suffering severe depression and had begged her husband not to go to work that day. The call that he took was from his wife. He hesitated to take the call, but frightened as to the catastrophic consequences of not taking the call, answered his phone and told his wife he would call back as soon as it was safe to do so. He had a long and unblemished record of service, acknowledged his fault and was remorseful. The Commission held that notwithstanding that there was a valid reason for dismissal held that the dismissal was harsh and reinstated the bus driver.

This decision is a reminder to all employers to make sure that any punishment “fits the crime” and that factors such as length of service, previous employment history, and inconsistent application of policies in relation to Internet usage may suggest that action short of termination should be taken.

What should Employers do?

1.             - Make sure that policies in relation to Information Technology are up to date,

2.            - Ensure that all staff are aware of the policies,

3.            - Make sure that policies are fairly and consistently enforced,

4.            - Assess each case of misconduct and breach of policies by reference to the particular circumstances including :  the employees age, length of service,  disciplinary record, remorse and the gravity of the misconduct,

5.            - Ensure that a punishment such as dismissal is not disproportionate to the offence.

Dismissal can be hotly contested by employees especially where there is a realistic prospect of reinstatement.  Employers should seek early advice from an experienced workplace practitioner about proper process before proceeding to terminate an employer for breach of policies.

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.

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