Lingerie retailer, Honey Birdette, is in hot water with former employees over workplace policies. We discuss these allegations below and set out an employer’s obligations around uniform, discrimination and workplace health and safety.
The employees’ complaints focussed on the harassment from customers and the employer’s exploitation. In particular, the ‘customer service techniques’ in the sales manual Honey Birdette provided to employees.
Employees were required to wear high heels, skirts and items from the brand’s range to each shift. They were not permitted to wear trousers and were required to wear a particular style of ‘pin-up girl’ makeup. Employees often spent up to $200 a week on the brand’s lingerie (although Honey Birdette did provide staff with a discount). The brand also required each employee to send in daily ‘selfies’ of what they were wearing to each shift.
Uniform Policy Laws in Australia
An employer can require employees to wear uniforms to work. However, under most awards, an employer will usually need to provide employees with the uniform or reimburse the cost.
If an employer has requested an employee wear certain items of clothing that represent the brand, it is usually considered a uniform. Under the Fair Work Act 2009 (Cth), employers cannot force employees to use their wages to pay for the uniform if the employer’s requirements are unreasonable.
What is Considered Unreasonable?
Reasonableness always depends on the circumstances. In 2014, the Fair Work Ombudsman investigated 35 fashion retail outlets, including Forever New, Lovisa and Diva. The investigations followed complaints from workers claiming that their employers made them pay for their uniforms (being the brand’s clothing and jewellery) without reimbursement.
The Fair Work Ombudsman determined that these retailers needed to pay back over $12,400 to their staff for the cost of their uniforms. The Fair Work Ombudsman stated that while this breach is more likely a misunderstanding or oversight rather than anything intentional, the employers were still required to make these payments. The Fair Work Ombudsman said that they would explicitly target these companies to ensure compliance in the future.
Honey Birdette’s requirement that employees purchase the brand’s lingerie on an ongoing basis could be unreasonable in light of the Fair Work Ombudsman’s decision. Especially if the discount provided to staff was not enough to reduce the burden of the cost of the purchases.
Workplace Health & Safety and Harassment
The second aspect of the employees’ allegations focussed on the sales tactics Honey Birdette promoted and their lack of support for employees on workplace health and safety issues. Many workers have said they have felt stressed, anxious and intimidated because of their interactions with customers and the lack of support from management.
The sales manuals provided to staff suggested phrases such as ‘spank me if I’m wrong’ and ‘unleash your inner minx.’ Despite encouraging staff to use such suggestive phrases, they did not provide any training for staff on how to deal with sexual harassment. Former employees claim they were the subject of inappropriate personal comments, leering and sleazy behaviour from male customers, including customers using the sex toys in the store.
The employees alleged that the employer did not take complaints about sexual harassment and workplace safety seriously. Employees were often required to work entire shifts on their own, saying they were refused toilet and meal breaks because they were not allowed to leave the store. One employee claims she had to urinate in an empty rubbish bin. Another claims that a customer subjected her to a rape fantasy while she was alone in the store. When informing a manager over the phone, she was told to ‘turn the music up and get on with the day.’
Workplace Safety Law and Prevention of Sexual Harassment
Business owners are legally obligated to create a safe work environment in Australia. Under the Work Health and Safety Acts of each state and territory, businesses have a legal responsibility to:
- Provide a safe work premises;
- Provide a suitable working environment and facilities; and
- Assess risks and implement appropriate measures for controlling them, among others.
An employer’s responsibility regarding safety can differ by industry. However, some requirements apply to every workplace. For example, SafeWork Australia guides business owners on what they should look for in their place of work. For retailers, prevention and response to workplace bullying and prevention of workplace violence (e.g. robbery) apply as well as general occupational health and safety regulations.
Regarding sexual harassment, the Australian Human Rights Commission provides guidance to employers and employees on dealing with sexual harassment in the workplace. In 2011, amendments to the Sex Discrimination Act 1984 (Cth) made customer-perpetrated sexual harassment unlawful. It is also now an employer’s duty to ensure their employees are safe and free from harassment by customers, as well as other employees.
Honey Birdette could potentially have breached workplace safety laws, the Sex Discrimination Act 1984 (Cth) as well as their obligations regarding uniform. At the date of publication of this article, the Fair Work Commission is yet to intervene. However, it is clear that employers need to be mindful of treating their employees with respect and concern.
If you have any questions or need assistance drafting your employee handbook, get in touch with our employment lawyers on 1300 544 755 or fill out the form on this page.