Jade Carlson, Attwood Marshall Lawyers Commercial Litigation Senior Associate, looks at some recent explosive Parliamentary staffer employment cases that have gripped the media and put a spotlight on workers’ rights and safety.
Summary
Workplace culture has been put under a microscope in recent high-profile disputes involving federal members of Parliament and their staff.
Employment disputes happen all the time, but occasionally they make so much noise that they lead to changes in employment rights. An individual speaks out about a bad experience with an employer which in turn rallies others and kickstarts a public debate about what should and should not be tolerated in a workplace. If attention on that topic doesn’t dissipate, or legal action is taken, it can lead to legislative change that is then rolled out in workplaces across the country.
One such high-profile case that employers would do well to watch is a dispute between the federal independent ‘Teal’ MP Monique Ryan and her former chief of staff Sally Rugg. The case is Sally Rugg v The Commonwealth of Australia as represented by the Department of Finance and another [2023] FCA 179 (the Rugg case). It is set to go to trial later this year and tackles the issue of the normalisation of working long hours and the unrealistic expectations of employers of their staff.
Although the Rugg case focuses on Parliamentary workers, the outcome is likely to have wider implications on industries that similarly expect employees to work 70 or 80 hours a week (or more).
Another dispute that has led to change in the workplace is the Brittany Higgins scandal. Higgins was a parliamentary advisor who claims she delayed pursuing a criminal complaint about a sexual assault by a co-worker because she feared losing her job working in the office of a federal Liberal Party Minister of the former government led by Scott Morrison.
The fallout from Higgins’ allegations, particularly the way she felt she was treated by her Liberal Party employers, has contributed to a huge focus from the current government on legislative reform aimed at addressing workplace culture and safety. The headlines have been fuelled by allegations of political interference in the criminal proceedings brought against the alleged work colleague accused of raping her and pressure placed upon Ms. Higgins by the Liberal Party not to air her complaint prior to the federal election in 2019 (where Scott Morrison’s Coalition government narrowly won the election). Many pundits consider that if this case had aired before the election, it may well have resulted in a Bill Shorten led Labor Party victory.
The Overtime Question
Parliamentary staffer and activist Sally Rugg filed a lawsuit in the Federal Court against independent MP Monique Ryan and the Commonwealth in January 2023 over an alleged breach of workplace laws. The Rugg case is expected to clarify whether 70-hour working weeks are unlawful under the Fair Work Act 2009 (Fair Work Act).
Ryan, an independent member of Parliament elected to the Victorian seat of Kooyang in 2022, is fighting allegations that she attempted to terminate Rugg’s employment after the activist refused to work “unreasonable” overtime. The lawsuit also accuses Ryan and the Commonwealth of engaging in a hostile workplace.
Rugg worked for Ryan as her chief of staff for about six months. She says that Ryan publicly acknowledged her staff were working 70-hour weeks even when several inquiries and reports presented to Parliament over the years had put the government on notice of unlawful excessive hours.
The Rugg case will hinge on whether the additional hours that Ryan demanded went beyond Rugg’s contractual obligation to work undefined “reasonable additional hours.”
Her lawyers say that if the Rugg case succeeds, it could lead to an influx of class actions brought by Australian employees in other white-collar sectors who similarly believe they are being exploited by being pressured to work excessive hours.
A similar case has been brought against National Australia Bank by a union representing a group of bank managers who claim to have had to work between 55 and 80-hour weeks. They are seeking compensation for “unreasonable” unpaid hours and “relentless long workdays” that have affected their health.
Key Court Dates
The two sides entered mediation after the suit was filed, but talks failed after four weeks. A Federal Court trial is now expected to take place later this year, and it is slated for three or four weeks.
The Rugg case was last in court on 7th March 2023, when Justice Debra Mortimer dismissed Rugg’s application for an injunction that would have blocked her termination from Ryan’s office during the legal proceedings. Rugg had argued that Ryan had effectively forced her to resign and that she should be allowed to keep her job, but the judge concluded that it would be intolerable, unproductive, and unworkable for both sides if the pair had to work together again.
Respect@Work Changes
Another parliamentary scandal that has been instrumental in prompting a national conversation about workplace culture that is still playing out in the courts today was Brittany Higgins’ sexual assault allegations, which came to light in 2021.
Higgins, a former political advisor, claims she was sexually assaulted by colleague Bruce Lehrmann in the ministerial suite of then-defence minister Linda Reynolds after a night out with colleagues in March 2019.
Higgins went public with the alleged incident in February 2021, reopening her complaint with the police. She said she felt pressured to drop an initial criminal complaint because it was election season at the time, and she wanted to keep working at Parliament. She said she repeatedly told her superiors between 2019 and 2021 about the incident yet received little support.
Lehrmann was fired in April 2019, not for the alleged rape but for a ‘breach of security’. Higgins meanwhile was moved from Reynolds’ office in June 2019 and worked as an adviser for Senator Michaelia Cash until January 2021.
After Higgins resumed her criminal complaint, Lehrmann was charged with one count of sexual intercourse without consent. He pled not guilty. The case went to trial in October 2022, but it collapsed after the judge discovered a juror had obtained information outside the evidence presented at court. A retrial was set for February 2023, but that was then abandoned by the prosecutor in December 2022, citing concerns for Higgins’ health if she had to endure cross-examination a second time.
Higgins’ allegations sparked controversy about workplace culture and heaped scrutiny on the former Morrison government. They also prompted several other women to come out with their own stories of sexual harassment in the workplace and being silenced by their bosses.
The scandal reinforced the need for legislative reform and the enaction of proposals under the so-called Respect@Work initiative. Morrison took a year to respond to the National Inquiry on Sexual Harassment in Australian Workplaces, which was released in early 2020. His government only legislated some of the 55 recommendations out of the report.
But Anthony Albanese, who became Prime Minister in May 2022, adopted the legislative proposals in full in November 2022. They included a prohibition on “hostile” work environments, a positive duty on employers to make workplaces free of harassment and the extension of gender statistic reporting from the private sector to also include the public sector.
Follow-on litigation
Shortly after the second trial against Lehrmann collapsed in December 2022, Higgins settled civil claims she had brought against her employer, the government. Her claim was reportedly for sexual harassment, sex discrimination, disability discrimination, negligence, and victimisation. There is also an ACT Board of Inquiry taking place into the agencies involved in the criminal case.
Lehrmann is meanwhile seeking to bring a defamation claim against Network Ten, News Corp and journalists Lisa Wilkinson and Samantha Maiden. He was recently in Court arguing that he should be exempted from the 12-month limitation period for bringing defamation proceedings. The judge is yet to rule on the application.
The legalities
The overtime issue:
Under the Fair Work Act, an employer cannot require an employee to work more than 38 hours per week unless the additional hours are “reasonable”. Determining what is “reasonable” is a relatively subjective exercise.
Section 62(3) of the Fair Work Act sets out a non-exhaustive list which may be considered in determining the “reasonableness” of the additional hours, which includes the employee’s personal circumstances, the employee’s overtime payment entitlements, the needs of the workplace, and whether there is any risk to employee health and safety while working the additional hours.
The decision in the Rugg case is expected to clarify the position further. The most recent case handed down examining what constitutes “reasonable additional hours” was Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512, which further considered whether the hours worked were sociable, the frequency of the additional hours and the number of additional hours worked involving a migrant worker in a processing factory that was instructed to work specific hours (adding up to 50 hours per week), as opposed to a highly paid white-collar worker in a managerial position.
Employers should proceed with caution when requiring employees to work over 38 hours per week. If employees elect to work overtime, employees should examine whether the additional hours are reasonable, and consider the circumstances listed in section 62(3) of the Fair Work Act.
The sexual harassment/safe workplace issue:
The Australian Human Rights Commission is currently conducting its fifth national survey on workplace sexual harassment, the results of which will inform responses by policymakers and employers. The last survey in 2018 found that one in three workers in Australia had been sexually harassed at work, compared to one in four people in 2012.
As a result of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022 (Cth), there is now a more robust legal and regulatory framework that workplaces need to comply with across the country. The legislation is aimed at solidifying employee rights and protections and providing more support for survivors of sexual abuse or harassment.
In addition to ensuring that their policies address misconduct in the workplace and ensure adequate reporting of incidents, employees would do well to consider rules are in place around the treatment of employees who mount allegations against colleagues.
Attwood Marshall Lawyers – helping employers and employees resolve disputes effectively
Employees often encounter unfair and unjust behaviour in the workplace and do not know where to turn when their superiors or workplace do not provide the support and resolution needed.
At Attwood Marshall Lawyers, we have a dedicated team of employment lawyers who can help employees understand their rights and the steps to take to resolve disputes with employers. We understand the sensitive nature of these matters and are here to support people through these challenging times.
We can also advise employers in relation to disputes, helping resolve allegations that arise from their employees. When disputes can be resolved effectively it can reduce any interruption to business operations and help all parties move on as quickly as possible.
If you are involved in an employment dispute and would like to have a confidential discussion about something that you have experienced in the workplace, please contact our Commercial Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.
