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Allegations of sexual harassment have dominated headlines, most visibly with the #MeToo campaign.

Sexual harassment complaints, and the laws that attempt to curb the behaviours, are not new. Despite regulation, sexual harassment is still occurring in workplaces. Why?

One answer may be that organisations guard against sexual harassment through policy and lecture style training without reference to the broader workplace context.

To counter this, an alternate approach may be to use existing risk management frameworks, that have traditionally been used in the workplace health and safety context.

Step 1: Identify hazards

This step requires a deep and honest assessment of the:

  • Structure of the organisation and the industry context.
    For example: Highlighting potential hazards, such as reliance on informal recruitment practices and extreme competition for jobs that could combine to create a higher risk environment.
  • Type of work.
    For example: Physically demanding work and roles that seek attributes where appearance determines recruitment could increase risks.
  • Way work is performed.
    For example: If work is performed in environments that isolate workers, and where workers are required to be alone with a superior, colleague or customer this could lead to increased risks.
Step 2: Assess the risks

Understand the nature of harm that could be caused by the hazard, how serious the harm could be and the likelihood of it happening.

To assess this, ask:

  • How often are people exposed to the hazard? Does this make the harm more or less likely?
  • Has sexual harassment ever happened before arising from the identified hazard, either in your workplace or somewhere else? How often?
Step 3: Identify control measures and assess whether they are reasonably practicable

The most important step in managing risks involves eliminating them so far as is reasonably practicable, or if that is not possible, minimising the risks so far as is reasonably practicable. This requires higher order controls.

Can a hazard or risk be eliminated?

If lower order controls are used are these the right type of the controls? Our experience is that lecture style, text book training to address sexual harassment rarely works by itself. Interactive, engaging sessions which avoid regurgitating the legal definition of sexual harassment are likely to better engage a workforce.

Step 4: Implement the control measures

Implementation of the control measures may require changes to the way work is performed. This may require new procedures, additional training and supervision.

Step 5: Review and revise

Viewed through a risk management lens, polices and training which have typically been the tools of choice for addressing sexual harassment are low on the hierarchy of the controls. If organisations approach sexual harassment with a risk management approach, and identify appropriate higher order controls might we decrease instances of sexual harassment?

For example:

It is identified that in a highly competitive niche creative business which uses short term workers, recruitment is frequently informal and takes place at industry events.

All else being equal, the likelihood of (an allegation of) sexual harassment is higher in these circumstances than if recruitment were to occur in an office where a formal interview was conducted with a representative mix of interviewers.

The organisation seeks to minimise the risks, by putting in place processes that ensure even when contacts are met at industry events, a formal interview occurs within working hours in the office environment.

These control measures are reviewed and reviseded. Ensure the control measures remain effective. Are complaints of sexual harassment decreasing? What does formal and informal consultation with workers tell us about the effectiveness of controls?

We are working with our clients to trial this approach – combining our specialist expertise across workplace health and safety, and employment law.

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Employment class action lawsuits are a common cause of action in North America, and while we have traditionally seen fewer in Australia, there has been a recent uptick in occurrences. What does this mean for Australian employers? Without large numbers of cases and their precedents to study, how you plan for and prevent class actions may be an ‘unknown’ for many employers. Given the unique bet-the-company issues for employers arising from class actions – we have outlined some risks and strategies.

The Australian context

Whilst uncommon in Australia, there are high-profile examples of employment class action lawsuits.

Indeed, proceedings brought during the 1998 Waterfront Dispute were brought on behalf of approximately 1,400 employees under the Federal Court of Australia’s class action regime. Another example dating back to the days of Australian Workplace Agreements involved proceedings brought on behalf of over 700 academic and general employees of a university.

More recently, two employment class actions have been commenced targeting companies who provide marketing services for large and well-known brands, alleging contravention of minimum labour standards.

Why is the class action landscape changing now?

There are many reasons for the uptick in claims, and those relevant to employment include:

  • diminishing union membership across the private sector, but an increase in individual rights and prominence of plaintiff law firms organising class actions
  • an increased public awareness of minimum labour standards and broadly applicable laws, such as the general protections provisions, brought into focus as a result of a number of well documented scandals
  • an increase in the activity of litigation funders willing to venture outside their traditional stomping ground of commercial litigation.

We also predict that there will be many more such actions in the future, particularly given the ramped up penalties for franchisors and holdings companies found to have been complicit in the underpayment of employees or failure to keep proper employment records by their franchisees and subsidiaries.

Learnings from the US

At Seyfarth, our team of workplace law experts analyse and breakdown the mosaic of US class actions each year compiling a report that highlights the trends. In 2017 they recognised:

  1. Settlements skyrocket
    The monetary value of settlements rose dramatically, with the top 10 settlements in employment-related categories totalling a record high of US $2.72 billion — nearly US $1 billion more than 2016. In Australia, settlements are already causing an increase in insurance premiums for directors.
  2. A favourable landscape
    Evolving case law precedents and new defence approaches resulted in better statistical outcomes for employers in opposing class certification requests for the second straight year. In one of the most active categories, wage & hour litigation, employers won 63% of decertification rulings, a success rate up almost 20% from 2016.
  3. More enforcement
    With the federal government in transition, 2017 results were heavily influenced by Obama administration holdover policies and personnel as government enforcement litigation increased. This balloon is expected to burst in 2018 as the Trump administration settles in further, pulling back these policies and positions; yet, at the same time, it is expected that the private plaintiffs’ class action bar will step up their lawsuit filings and “fill the void”.
  4. Pivotal rulings
    Several key decisions in 2017 of the Supreme Court were arguably more pro-business and pro-employer than in the past. In May 2018 the Supreme Court profoundly changed the class action playing field with its highly anticipated ruling on the Epic Systems, Murphy Oil, and Ernst & Young trilogy of cases which found workplace arbitration agreements with class action waivers were lawful and enforceable.

To access the full report, and additional commentary visit www.workplaceclassactionreport.com.

For a discussion on the ‘best of breed’ strategies in class action and litigation globally – contact one of our partners.

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More than ever Boards and senior executive teams are held accountable for workplace liability. This combined with the impact of social media, and its capacity to spread tales of woe, makes ‘the workplace’ a key feature of boardroom attention today.

Download the overview of our top 7 for directors and the workplace:

  1. Workplace health and safety: protecting people at work
  2. Culture: the the organisational imperative
  3. Pay: incentivising right
  4. Brand damaging claims: architecture to prevent and manage
  5. Workplace optimisation: balancing strategy with risk
  6. Governance: oversight of executive conduct and supply chains
  7. Diversity: an organisation enhancing asset.

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In a dynamic and fast paced business environment, structuring the workforce to meet changing operational requirements is front of mind for most employers.

These requirements will often necessitate changes to an employee’s duties to ensure the business has the right skills in place in a competitive market – for example, to keep pace with technological change. Employers may also look to fill a resourcing gap by utilising existing employees in a different role, rather than recruiting.

The ability to direct an employee to perform additional or different duties will depend on the specific employment instruments that are in place, and their terms. The starting point is to consider the contract of employment, job description and any applicable industrial instrument to confirm what the job involves, whether a variation is permitted, and in what circumstances.

In some cases, organisational change may give rise to a redundancy, entitling the employee to severance pay. A redundancy situation may occur where the duties performed by an employee change so substantially that there is no longer any function or duty attached to the position. But where is the line? The Federal Court of Australia recently considered this question on appeal, from the Federal Circuit Court.

Sensis Pty Ltd v Robert Gundi

Seyfarth Shaw acted for the successful appellant, Sensis (Sensis Pty Ltd v Robert Gundi [2017] FCA 1519), in this case. A Sensis sales employee was directed to focus his sales activities on winning new business from prospective customers, rather than selling to customers that already had a relationship with the company. This was the only change to the role. The job description required the employee to sell advertising products and services to both existing and prospective customers of Sensis.

Mr Gundi asserted he had been made redundant, however the Court found that the employee’s position was not redundant, because at all times, he was required to service new and existing customers of Sensis. While the split between new and existing business had changed (quite a lot), the basic duties he was directed to perform were within the scope of the position, as contemplated by the contract of employment and job description.

The upshot is that employers will have some flexibility to change an employee’s duties at their prerogative, provided it is within the scope of the employment, and specifically, the employee’s contract. Think about giving the business this kind of ‘flex’ when drafting contracts.

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As the Beliebers of Australia will tell you, tickets for Justin Bieber’s 2017 “Purpose World Tour” were released in Victoria on Wednesday, 12 October at precisely 1pm.  In a frenzy, fans across Victoria were using their employer’s time and resources to purchase (or miss out on) tickets.

Beiber imageAs society becomes increasingly digitalised, it’s now common for employees to use their employer’s internet access for non-work related purposes. Referred to as ‘cyber slacking’, can be a source of frustration for many employers who endeavour to limit recreational internet usage for staff. On the other hand, many employees feel that due to the increasing demands of work life, such as long hours and weekend work, personal internet usage ‘on the job’ should be accommodated. Is workplace flexibility just about leaving work 15 minutes early for an appointment, or does it include personal admin tasks that are done during working hours? Continue Reading Managing personal admin during working hours: is it too late now to say sorry?

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Are you getting the best advice when it comes to health and safety compliance?

When we deliver legal briefings, both in Australia and internationally, top-of-mind for Boards and Senior Executives is the health, safety and welfare of people affected by their operations. This is how it should be – so everyone breathe a collective sigh of relief (insert sigh).
When it comes to seeking commercially sound legal advice on these issues – whose advice should you be seeking? Continue Reading A word of advice, on advice

Work imageWhat will work look like in the future and what lessons can employers take from that? Two recent reports have identified the trends in the way in which we will work in Australia over the next 20 to 40 years.

In the first, Tomorrow’s Digitally Enabled Workforce, the CSIRO looks at what they describe as six ‘megatrends’ for jobs and employment markets over the coming twenty years: Continue Reading The future of work – what are the lessons for employers?

LuggageA takeover of one business by another can be a lot like a visit from your mother-in-law.

On Mother’s Day, we enjoy a cup of tea or a glass of bubbles with our mums in recognition of all their hard work and sacrifice. We give thanks for the tips, advice, guidance and life-long lessons only they can proffer. I recall with great fondness my Mum’s unwavering enthusiasm during the tears, tantrums and pre-stage jitters of my jazz-ballet/hip/funk/tap performances. For Mum, an exhaustive commitment of pick-ups and drop-offs, elaborate hair do’s, dress rehearsals and toe-tapping her way through yet another Robert Palmer tribute. Every time, through the haze of Cedel Hairspray Extra Firm, there was my Mum.  Continue Reading Mum’s the word on safety during takeovers

FinanceScott Morrison’s first Federal Budget announced the creation of the ‘Youth Jobs PaTH’ (Prepare-Trial-Hire) program – a program designed to encourage up to 120,000 unemployed youth into the workforce through skills training programs, paid internships and incentive payments for prospective employers. While further details will come to light over the course of the Federal Election campaign, employers who want to participate will need to look before they leap, to make sure their participation in the program doesn’t lead them, later on, to fall foul of the minimum wage provisions in awards and legislation.  Continue Reading Are you on the right path with interns?