Pub­li­ca­tions

A Review of Women at Work in 2018

With 2018 com­ing to a close, an oppor­tu­ni­ty exists to reflect on the social, legal and polit­i­cal issues that defined the year. The year of 2018 sits between the 2017 out­pour­ing of #metoo sto­ries, and the pend­ing fed­er­al elec­tion of 2019. For that rea­son, 2018 has been both empow­er­ing and dif­fi­cult for many women, as prob­lems con­cealed under the sur­face have moved to the fore­front of Aus­tralian discourse. 

In 2018 we have wit­nessed a fur­ther out­pour­ing of #metoo sto­ries, now uncov­er­ing a sor­did his­to­ry of sex­u­al harass­ment in non-cre­ative indus­tries such as pol­i­tics, finance and law. In addi­tion, the courts have heard dis­crim­i­na­tion and gen­er­al pro­tec­tions cas­es deal­ing with com­plaints that some women have not been treat­ed the same as their male counterparts. 

The AHRC has announced a world first inquiry in to sex­u­al harass­ment in Aus­tralian work­places, and the Com­mon­wealth gov­ern­ment has debat­ed domes­tic vio­lence leave and pay secre­cy laws. What this means for women, and for all Aus­tralians, is yet to become ful­ly appar­ent. How­ev­er, it is clear that 2018 is mere­ly the start of many more years of increased focus on issues that dis­pro­por­tion­ate­ly impact women, includ­ing sex­u­al harass­ment, in a post #metoo era.

Flex­i­ble Work 

Many com­pa­nies offer employ­ees the oppor­tu­ni­ty to request flex­i­ble work arrange­ments, either as part of the Nation­al Employ­ment Stan­dards, a Mod­ern Award enti­tle­ment or as a prod­uct of com­pa­ny pol­i­cy. The ben­e­fits of flex­i­ble work are tout­ed by many, with the Fair Work Com­mis­sion most recent­ly intro­duc­ing a mod­el term for flex­i­ble work arrange­ments with­in all Mod­ern Awards with effect from 1 Novem­ber 2018. How­ev­er, the imple­men­ta­tion of flex­i­ble work still per­plex­es even some of the most pro­gres­sive man­agers, as they attempt to imple­ment a sys­tem that bal­ances employ­ee needs and com­mit­ments with those of the business. 

The dif­fi­cul­ties of bal­anc­ing flex­i­ble work have most recent­ly come to light in the mat­ter Rachel Shafn­er v Ama­zon Com­mer­cial Ser­vices Pty Ltd (MLG23639/2018). In this mat­ter the Appli­cant made a Gen­er­al Pro­tec­tions appli­ca­tion to the Fair Work Com­mis­sion and sub­se­quent­ly the Fed­er­al Cir­cuit Court in Mel­bourne. She alleged that Ama­zon took adverse action against her after it became aware of her require­ment to care for both her hus­band and chil­dren. It is also alleged that Ama­zon ter­mi­nat­ed the Appli­can­t’s employ­ment a day pri­or to her 12-month anniver­sary date of employ­ment, and thus her enti­tle­ment to request flex­i­ble work arrange­ments under the NES

While this case is yet to be heard by the FCC, and there­fore find­ings on the mer­its of this case have yet to be made, this deci­sion may shine a light on the expe­ri­ence of work­ing women when request­ing flex­i­ble work arrange­ments. Cur­rent­ly, the FWC does not have the pow­ers to decide on mat­ters relat­ing to the mer­its of requests for flex­i­ble work arrange­ments, or rea­sons for their refusal, and there­fore there is lit­tle guid­ance to this process avail­able on the pub­lic record. 

Aca­d­e­m­ic lit­er­a­ture that has exam­ined the expe­ri­ence of employ­ees request­ing flex­i­ble work arrange­ments (pri­mar­i­ly women), has over­whelm­ing­ly found that employ­ees are treat­ed dif­fer­ent­ly when they make a request for flex­i­ble work arrange­ments and these requests and arrange­ments can often have a long-term detri­men­tal impact on their careers.[1] This can occur for a vari­ety of rea­sons includ­ing anti­quat­ed views that favour employ­ee pre­sen­teeism, the mis­guid­ed view that employ­ees in man­age­ment can­not work flex­i­bly, the guilt felt by those work­ing flex­i­bly result­ing in exces­sive out of office work hours, and a fail­ure to adjust KPIs to reflect part time work hours. 

Although the right to request flex­i­ble work arrange­ments was intro­duced into the Fair Work Act 2009 (Cth) on 1 July 2013, there is still a way to go before work­place flex­i­bil­i­ty is ful­ly engrained in Aus­tralian work­places. With Rachel Shafn­er v Ama­zon Com­mer­cial Ser­vices Pty Ltd sched­uled to be heard in the FCC in 2019 this may pro­vide greater insight into the expe­ri­ence of work­ing women request­ing flex­i­ble work arrange­ments in a legal context.

Sex­u­al Harassment

The year 2018 fol­lowed an out­pour­ing of sto­ries of sex­u­al harass­ment in the work­place and Aus­tralia was not immune. Mat­ters relat­ing to sex­u­al harass­ment have crept to the fore­front of the nation­al dis­course both through gen­der equal­i­ty in pol­i­tics, gov­ern­ment inquiry through the AHRC and legal pro­ceed­ings. The com­mon­al­i­ty of find­ings from each method of inquiry is that Aus­tralians do not have a shared under­stand­ing of what sex­u­al harass­ment is, and what should be done to mit­i­gate and reduce the inci­dence of this preva­lent issue.

The deeply entrenched fear of mak­ing a com­plaint about sex­u­al­ly harass­ing behav­iours has been demon­strat­ed in the AHRC Report Every­one’s Busi­ness: Forth nation­al sur­vey on sex­u­al harass­ment in Aus­tralian work­places. This report found that the major­i­ty of those who expe­ri­ence sex­u­al harass­ment at work fail to report such con­duct. In a sur­vey of 10,000 par­tic­i­pants the AHRC found that 72% of Aus­tralians had expe­ri­enced sex­u­al harass­ment at some point in their lives. This is a stark fig­ure yet reflects the preva­lence of these sto­ries affect­ing the Aus­tralian pub­lic. Of those sex­u­al­ly harassed, 60% had expe­ri­enced more than one form of sex­u­al harassment.

There are many rea­sons why such con­duct remains unre­port­ed, with fear of ret­ri­bu­tion being a key point, how­ev­er, the AHRC Report also uncov­ered aston­ish­ing evi­dence that of the Aus­tralians sur­veyed, many did not suf­fi­cient­ly under­stand the legal def­i­n­i­tion of sex­u­al harass­ment to be able to report such conduct. 

Over­all, 49% of respon­dents iden­ti­fied that they had not expe­ri­enced sex­u­al harass­ment after being pre­sent­ed with the legal def­i­n­i­tion. After being pro­vid­ed with a list of sex­u­al­ly harass­ing behav­iour this num­ber went up to 71%. 

These find­ings indi­cate that there is a dis­con­nect between the expe­ri­ence of Aus­tralian work­ers and the legal def­i­n­i­tion of sex­u­al harass­ment. Even after the out­pour­ing of #metoo reports, there is a dis­tinct lack of under­stand­ing amongst Aus­tralian adults as to what actu­al­ly con­sti­tutes sex­u­al harass­ment in Aus­tralian workplaces.

This dis­con­nect was appar­ent in the case Col­in Ramon Reguero-Peunte v City of Rock­ing­ham (U2017/13857) in which the FWC found that an employ­ee, a young woman, did not have to explic­it­ly state that she did not want to receive sex­u­al­ly explic­it com­mu­ni­ca­tions from a col­league in order for that con­duct to be deemed inap­pro­pri­ate. This is an impor­tant deci­sion that recog­nis­es the imbal­ance of pow­er that exist­ed between this young female employ­ee and her man­ag­er, who was in a posi­tion of supe­ri­or­i­ty. The Appli­cant, in his appli­ca­tion for unfair dis­missal rem­e­dy, alleged that the ter­mi­na­tion of his employ­ment after send­ing sex­u­al­ly explic­it text mes­sages to a junior employ­ee was harsh, unjust and unrea­son­able after he was sum­mar­i­ly dis­missed based on the find­ings of an inves­ti­ga­tion into his conduct. 

Although the Appli­cant made rep­re­sen­ta­tions that he believed his con­duct was at all times wel­comed and rec­i­p­ro­cat­ed, he was ulti­mate­ly instruct­ed by his employ­er to cease, he failed to do so. The young female employ­ee did not explic­it­ly ask the Appli­cant to stop due to his senior­i­ty and fear of ret­ri­bu­tion. The FWC deemed that her choice not to ask him to stop was not a suf­fi­cient defence avail­able to the Appli­cant to per­mit this behaviour.

In XVC v Joanne Barones­sa (Human Rights) [2018] 1492 the Appli­cant made a claim under the Equal Oppor­tu­ni­ty Act 2010 (VIC) based on direct dis­crim­i­na­tion against her on the basis of her sex, in rela­tion to her report about the con­duct of a male work­er. In this case a male col­league made a num­ber of com­ments about his pref­er­ence for Asian women, and oth­er sex­u­al­ly sug­ges­tive com­ments. The Senior Mem­ber made find­ings that the com­ments were both of a sex­u­al and men­ac­ing nature. 

After com­plain­ing about these com­ments, the work­er was told by her man­ag­er, words to the effect that it is a male dom­i­nat­ed indus­try, and this should be expect­ed. It was this unsym­pa­thet­ic treat­ment and her fear of her harass­er that led the Appli­cant to make a claim for dam­ages due to her hurt and humil­i­a­tion. This claim was ulti­mate­ly suc­cess­ful and dam­ages amount­ing to $10,000 were award­ed for non-eco­nom­ic loss.

Align­ing with the find­ings of the AHRC Report it is evi­dent that there is a deep-seat­ed fear of ret­ri­bu­tion amongst vic­tims of sex­u­al harass­ment. The AHRC will con­tin­ue this research in 2019 with a world first inquiry in to sex­u­al harass­ment in Aus­tralian work­places. It is expect­ed that deep and sys­temic issues will be uncov­ered through­out the process, with rec­om­men­da­tions sched­uled for release next year. 

Although issues that impact women have been at the cen­tre of pub­lic debate, it is clear that the extent of these issues is not ful­ly known. Look­ing for­ward to 2019, an elec­tion year, the release of the AHRC Report, and con­tin­ued pub­lic dis­cus­sion around dis­crim­i­na­tion in the work­place, it is evi­dent that women at work will be at the cen­tre of con­tin­ued pub­lic dis­course as well as pub­lic pol­i­cy and legal reform measures.

[1] Rae Coop­er, Mar­i­an Baird, (2015) Bring­ing the right to request” flex­i­ble work­ing arrange­ments to life: from poli­cies to prac­tices”, Employ­ee Rela­tions, Vol. 37 Issue: 5, pp.568 – 581, https://​doi​.org/​10​.​1108​/​ER-07 – 2014-0085