Casual worker dismissed for revealing pay to coworkers

casual pay cheque

Casual worker’s FWC claim to test new pay secrecy laws

A casual worker who was no longer offered shifts and dismissed for revealing her pay to her coworkers has taken her employer to the Fair Work Commission. The worker has made a general protections claim in which she alleges her employer took adverse action against for exercising a workplace right. That is, the right to discuss her pay with her colleagues.

This general protections case – Natasha Seymour v Pinnock PTY LTD & ORS [2023] – will provide a test of the new federal laws outlawing pay secrecy mandates by Australian employers. In this article, we’ll take a look at the details of this case. But first, let’s look at what the new pay secrecy laws mean for workers and discussing their pay with colleagues.

Secure Jobs amendments outlaw pay secrecy mandates

On 6 December 2022, changes to the Fair Work Act 2009 took effect that made discussing pay a workplace right for employees across Australia – whether they are full-time, part-time or casual.

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) introduced changes that are considered the most significant reforms to Australian employment law since the introduction of the Fair Work Act 2009 itself. These changes aim to make the employment law landscape more equitable for workers, with amendments promoting job security and flexibility.

A key new amendment that the Secure Jobs, Better Pay Act has introduced relates specifically with “pay secrecy” clauses. These clauses have historically been common inclusions in many employment contracts. They stipulate that a worker’s remuneration must remain confidential. And that they must not disclose, discuss or compare their pay or bonuses with their colleagues.

Discussing pay with coworkers is now a workplace right

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But now, thanks to the amendment, sections 333B and 333D of the Fair Work Act 2009 mandate that an employee can disclose, or not disclose, their remuneration to any other person. They also mandate that an employee can ask any other employee at the same or a different employer about their remuneration. According to these sections, an employer can not take adverse action if the employee chooses to exercise these rights.

The aforementioned rights apply to Australian workers who entered into an employment contract on or after 7 December 2022. Or to those workers who entered into an employment contract before that date, and the contract does not include pay secrecy terms inconsistent with these rights.

You can find more information about the new pay secrecy rules on the Fair Work Commission web site.

I was worried about my chances of finding other work.

Casual worker not given shifts and dismissed after discussing pay

The amendments to the Fair Work Act 2009 will now be tested by the emerging general protections case – Natasha Seymour v Pinnock PTY LTD & ORS [2023]. This case involves 29-year-old Natasha Seymour, a casual sales assistant for the well-known and historic Hill of Content bookshop in Melbourne’s CBD. On 26 May 2023, she made a general protections claim with the Fair Work Commission alleging that in February 2023, Hill of Content had taken adverse action against her.

The casual sales assistant claims that Hill of Content no longer offered her any shifts at the store after it had found out she had told her colleagues about a pay rise and backpay she received. Having started in the job in July 2022, Ms Seymour had worked an average of 26 hours per week.

Ms Seymour claims her dismissal breached pay secrecy laws

By not providing her any more casual shifts, Ms Seymour claims that she has been dismissed. “It felt like not just a rejection from the bookshop but from the industry as a whole, given how small it is,” Ms Seymour told The Guardian. “I was worried about my chances of finding other work.”

The argument put forth by the casual sales assistant is that Hill of Content had violated her protected right to discuss her pay with colleagues. She alleges that the bookshop violated sections 333B and 333D of the Fair Work Act 2009. Namely, the amendments made to the Fair Work Act in December 2022 following the passing of The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), which make discussing pay with coworkers a workplace right.

Casual worker argues her contract did not include pay secrecy clause

The Young Workers Centre, which is representing the casual sales assistant in her general protections case, alleges that her casual employment contract did not include a pay secrecy clause. Her contract had been partly written within an email chain between March 2022 and July 2022 with her employer. Part of her employment contract had also been agreed to verbally.

Ms Seymour told the Fair Work Commission that in July 2022, Hill of Content agreed to pay her a casual rate of $27.91 per hour for shifts she worked. This rate was equal to that of a level 1 employee under the General Retail Industry Award.

But in January 2023, Ms Seymour requested that she be paid as a level 3 employee under the award. Hill of Content agreed to increase her casual shift salary to $30.36 per hour. Ms Seymour also received an approximately $659 back payment that dated back to mid-September.

You broke our trust and confidentiality.

Ms Seymour is dismissed for disclosing casual shift pay rate

Shortly after having her casual rate increased, Ms Seymour said that she told two of her Hill of Content colleagues about the change to her pay. Hill of Content soon learned about this conversation, and thereafter dismissed her.

Hill of Content co-owner Duncan Johnston sent Ms Seymour a dismissal letter. In the letter, he said he was “extremely upset” with her “total disregard for confidentiality in anything that occurs between employer and employee”.

“You broke our trust and confidentiality in talking to other junior staff about your back pay and wage increase,” Mr Johnston wrote.

Hill of Content’s co-owner also stated that Ms Seymour had not been given a pay rise because her duties aligned with level 3 of the award. Rather, he said that it was because she was regarded as “future assistance management material.” Mr Johnstone also told Ms Seymour that her actions “totally unsettled our other staff and undermined our relationship with them.” And he claimed that Ms Seymour started reducing her casual shifts when she was awarded back pay, in order to start another job.

General protections case will “empower workers to speak up”

Felicity Sowerbutts, director of the Young Workers Centre, believes that Ms Seymour’s general protections case is the first to test the pay secrecy laws that took effect on 7 December 2022. She told The Guardian that the case was “significant for all workers” and that by assisting Ms Seymour, the Young Workers Centre wants “to empower workers to speak up” about unlawful pay secrecy clauses.

Pay secrecy is one of the reasons we have a gender pay gap and a racial pay gap.

Ms Sowerbutts said.
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The courts have previously upheld dismissals for discussing pay

In past general protections cases, discussing your pay with a colleague has been seen as a valid reason for dismissal by the Federal Circuit and Family Court of Australia. That is, if such action was prohibited due to the terms of an employee’s employment contract.

This was evident in the general protections case Australian Meat Industry Employees Union v Primo Foods Pty Ltd [2022] . In this case, the employee was dismissed for talking to his colleagues about their salary offers. This discussion took place while he and his colleagues were negotiating their employment contracts with their employer, Primo Foods.

The employee eventually told his manager that his colleagues weren’t satisfied with the offers they had received. And that they had asked for more money, which they had received. Upon hearing this, the manager felt “concerned and annoyed” as so much work had been done to “ensure the offers were fair.”

However, this discussion about his colleagues’ pay was in violation of the employee’s employment contract. Primo Foods said that the discussion was in breach of its code of conduct and that it warranted the employee’s dismissal. The employee was subsequently dismissed by Primo Foods for breaching the company’s confidentiality.

Federal Circuit and Family Court of Australia sides with employer

The company argued to the Federal Circuit and Family Court of Australia that the employee’s dismissal was warranted. This was because his “discussing other people’s offers would derail the project” undertaken to renegotiate the workers’ contracts.

Primo Foods also argued that when employees know what their colleagues are being paid, it can “cause conflict and potentially lead to people resigning because they are disgruntled.” And that the company’s employees could not understand the reasoning behind certain worker’s pay, which took into account their qualifications and experience.

At the employee’s general protections hearing, the Federal Circuit and Family Court of Australia agreed with the employer that the dismissal was warranted. The judge said that Primo Food’s arguments “logically explained” why it was critical to keep salary offers confidential. He also remarked that “there was a good reason for that to be done.” And that given the “seriousness of [the employee’s] breach of confidentiality, [Primo Foods] reasonably terminated [the employee’s] employment.” 

The Federal Circuit and Family Court of Australia therefore rejected the employee’s general protections claim.

New pay secrecy laws have changed the game

The new laws around pay secrecy aim to help tackle Australia’s gender pay gap. According to the Workplace Gender Equity Agency, women earn on average $26,596 less than men per year. During his Prime Ministerial election campaign, Anthony Albanese promised to make “gender pay equity an objective of the Fair Work Act.” One way in which he promised to do this was by making workplaces more transparent.

“At the moment, I find it quite extraordinary that for some employees, it’s actually against the law for them to tell people how much they’re paid,’ Mr Albanese said in 2021.

The argument behind removing pay secrecy is that it gives workers, in particular women, the ability to freely discuss their pay. Women can compare their pay to their male colleagues without fear of being disciplined or dismissed.

Employer face tough penalties for breaching new pay secrecy laws

The new pay secrecy laws have introduced steep financial penalties for those employers who disobey. Those organisations who choose to include a pay secrecy clause in an employment contract can face a maximum penalty of $82,500 or up to $825,000 for serious contraventions of the new laws.

These fines will only be handed down if the employment contract in question was entered into or changed on or after 7 December 2022.

Have you been unfairly dismissed?

If you believe you have been dismissed unfairly, or that your employer has taken adverse action against you, reach out to us at A Whole New Approach without delay. We specialise in providing expert assistance for cases involving unfair dismissals and adverse action. With over 30 years of experience and a dedicated team of professionals, we have successfully supported more than 16,000 employees across all regions of Australia.

Don’t allow unfair treatment to go unchallenged. However, it is crucial to take prompt action as you are required to file your unfair dismissal claim or general protections claim within 21 days of your dismissal. With A Whole New Approach, we can streamline the process of submitting a claim to the Fair Work Commission, making it quick and effortless. You can also can take advantage of our service with a no win, no fee policy. Get in touch with us today at 1800 333 666 for a confidential and complimentary discussion.