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/​1​0​.​1​1​0​8​/​ER-07 – 2014-0085

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Email: nlc@swaab.com.au

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