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Employment activity

Employees have the right to know about their employment entitlements, such as rates of pay or annual leave. Employers cannot treat their workers unfairly or penalise them for making a reasonable for information about their employment entitlements.

When is discrimination against the law?

Discrimination is treating someone unfairly because of a personal characteristic, and, as a result, causing them disadvantage. In Victoria, the Equal Opportunity Act 1995 makes it against the law to discriminate against someone because of their actual or assumed personal characteristic, such as:

• Age
• Breastfeedin
• Carer status
• Disability/impairment
• Gender identity
• Industrial activity
• Lawful sexual activity
• Marital status
• Parental status
• Physical features
• Political belief/activity
• Pregnancy
• Race
• Religious belief/activity
• Sex
• Sexual orientation
• Personal association with someone who has, or is assumed to have, any of these characteristics

It is now against the law for employers to treat their employees or contractors unfairly because they make reasonable requests and/or communicate concerns about their employment entitlements. This is known as ‘Employment Activity’.

This means that if an employee makes a reasonable request about employment entitlements, employers cannot treat them unfairly or penalise them by:

• cutting their hours or regular overtime
• denying them annual leave
• transferring them to undesirable duties
• not granting a promotion
• not providing them with access to services and training in the workplace
• terminating their employment

It is important to note that this amendment does not compel an employer to provide the information requested. It does means however, that an employer cannot treat an employee less favourably as a result of them asking for that information.

Examples of requests for information about entitlements

• “What is my rate of pay?” or “How much leave have I accrued?”
• Can I vary my hours to pick up my child from school?
• “Do I have an entitlement to maternity leave?”

CASE STUDY: Barry owns and operates a take away food shop and has three employees. Shirley, one of his employees, asks him if she should be receiving penalty rates for time worked on Saturdays. Soon after this, Shirley’s Saturday hours are reduced.
If Shirley’s believes her hours were cut because she asked about her rate, she can make a complaint of employment activity discrimination to the Victorian Equal Opportunity & Human Rights Commission. Barry may be asked to respond to a complaint of discrimination.

CASE STUDY: Jill has been working as a hairdresser for six months and has not received a payslip. She raises the matter with her employer in person and is told to stop asking questions. Days later Jill was instructed to not attend to customers and given cleaning duties instead.
Jill believes she has been treated unfairly because she raised a concern about her entitlements and can make an employment activity discrimination complaint to the Victorian Equal Opportunity & Human Rights Commission.

Making a request

1. Clarify the request and ensure it is ‘reasonable’
2. Check your contract, employment agreement or payslip for the information in case its already available
3. Consider putting your request in writing
4. Make the request to your employer - manager or designated HR/Payroll officer

Examples of communicating concern

• “I’m worried that I’m not being paid overtime”
• “I’ve heard the company is going under and I will not be getting my redundancy pay out”

Unreasonable requests

An ‘unreasonable’ request may be one that is made at an impractical or inappropriate time, or which carries an unrealistic or excessive demand. Requests that are made in a violent or threatening manner may also be unreasonable.

CASE STUDY: Cliff works as machinist for Rodger, the owner of a medium sized sheet metal fabrication business. Cliff wants to bring in a Health and Safety code of conduct at the workplace, so he calls Rodger at home on Sunday afternoon and asks him for a report of all the accidents that have taken place at the business in the last five years. This request does not relate to employment entitlements, and it may be unreasonable because it was made at an inappropriate time - outside work hours.

Liability

Employers are not only liable (legally responsible) for their own actions but also for the behaviour of their staff. This is called vicarious liability.

CASE STUDY: Maria owns a car detailing business with four outlets. Rob, the manager of one of the outlets, is asked by an employee about carer’s leave. Rob responds by cutting the employee’s hours. The employee then makes a complaint of employment activity discrimination to the Victorian Equal Opportunity & Human Rights Commission. Although the employee names Rob and the business in the complaint, Maria discovers she is liable for Rob’s behaviour as she is his employer. The complaint of discrimination affects both Ron and Maria.