We all need to ensure our workplaces are free from discrimination and provide equal opportunities for our employees. Do you know your obligations? Jan Dransfield and Will Snow explain what businesses should be doing.
If a happy workforce is good for business it follows that employers will want to provide a workplace that is free from discrimination and that offers equal opportunity. But these issues can be complex, and laws vary throughout Australia.
The profile of the Australian workforce has changed dramatically over the last 20 to 30 years, and this will continue into the future. According to statistics from the University of New England carer's responsibilities discrimination guidelines, we have higher levels of female participation in the workforce; seven out of 10 women in the age group 15 to 44 work; women are returning to work sooner after giving birth, and in most two-parent families both parents work. Our population is ageing, so our workforce is getting older, and many employees have responsibilities to care for children as well as ageing relatives.
Anti-discrimination laws have been enacted to protect particular categories of employees within the workforce. Under these laws, employers have an obligation to provide workplaces that are free from unlawful discrimination and harassment. But what is unlawful discrimination?
It is unlawful to discriminate (or treat a person less favourably than another person or group) for certain prohibited reasons. These reasons vary between states and under state and federal laws. However, unlawful reasons or grounds generally include age, race, national/ethnic origin, sex, breastfeeding, pregnancy, marital status, disability, religion, sexual preference, and family or carer responsibilities.
Unlawful discrimination can be direct or indirect. Indirect discrimination is often difficult to identify. It arises when a condition or requirement, which appears to treat employees in the same way, has an unfair effect on particular individuals or groups of employees. For example, a requirement to work certain shifts may indirectly discriminate against workers with family responsibilities; particular height requirements for a job may indirectly discriminate against women or people from different racial groups.
Discrimination can occur at all stages of employment. It can apply to terms of employment, the provision of employment benefits, promotions, opportunities to undertake training, or can arise when the employment terminates. It can even apply before employment starts, in the recruitment process when an employer decides not to select an applicant for a job. For example, by deciding not to employ a person because they are female, or pregnant, or have an injury or illness.
Sexual Harassment
We’ve all heard about instances of sexual harassment in the workplace—the Christmas party with the topless waitress, the male boss making sexually explicit comments to a female employee, screensavers depicting semi-naked women, or the 'girlie calendars' on office walls.
But what is it? Sexual harassment occurs when someone is subjected to unwelcome conduct of a sexual nature. Generally, the courts will consider whether a reasonable person would have anticipated that the person harassed would be offended, humiliated or intimidated by the conduct. It can be a one-off incident, or a pattern of unwelcome conduct.
Equal employment opportunity (EEO) is an important issue for business. Employers are liable for unlawful acts of discrimination or harassment by their employees at work, unless they can show they have taken all reasonable steps to prevent the discrimination or harassment occurring.
In many instances employers (both large and small) have been held liable for unlawful acts of discrimination by their employees, and have had damages awards made against them (which in many cases have exceeded $100,000). This does not include legal and other costs (including management time), which can well exceed this amount.
Unlawful discrimination and harassment can also have other costs to business. For example, by creating an unsafe workplace, through stress claims, creating employee morale issues and reducing productivity.
What should businesses do?
• Put in place an effective EEO policy (which covers discrimination, harassment and includes a complaints procedure).
• Give a copy to each staff member.
• Train all staff about their EEO obligations under the policy so they know what behaviours are inappropriate. Train staff about EEO at their induction and regularly during employment (such as every 12 to 18 months).
• Train your managers about their responsibilities to intervene and deal with EEO issues as they arise.
• Keep records of training attendance and policies being provided to staff.
• Appoint and train a contact officer or officers.
• Deal with complaints effectively and in a way that is consistent with your EEO policy and complaints procedure.
• Ensure that your managers deal with any issues as they arise, even if no complaint is made. Information about EEO policies and procedures is available from state and federal discrimination bodies and commissions. For example, the website of the Human Rights and Equal Opportunity Commission (HREOC) contains information about establishing an EEO policy which may be useful for small businesses. The link to the HREOC website is http://www.hreoc.gov.au/info_for_employers/index.html.
Flexible Work
An issue of growing concern to employers in the area of EEO is how to manage parental leave and flexible work arrangements when employees return from parental leave, which includes maternity, paternity, and adoption leave. The specific parental leave entitlements of an employee will depend on the legislation in the state where the employee works. Generally, parental leave is unpaid leave for up to 52 weeks. Some employers offer a period of this as paid leave.
Even if an employee doesn’t qualify for parental leave, an employer should properly consider a request for parental leave. There could be possible claims of unlawful discrimination on the grounds of pregnancy, sex or family/carer responsibilities. On return from parental leave, an employee may wish to work under a part-time or flexible work arrangement in order to better balance their work and childcare arrangements.
Industrial relations laws generally give an employee rights to return to their previous position after parental leave, or to a position as nearly as possible comparable in status and pay. There is no statutory right for an employee to return to work part-time when their position before going on parental leave was a full-time role. However, company policies, industrial instruments (such as awards and certified agreements) and relevant contracts should be checked.
If employers do not appropriately consider requests to work part-time or with flexible hours, this may bring about a claim of discrimination on the basis of sex, pregnancy, or family or carer responsibilities.
All flexible work proposals should be given proper and full consideration. Employers should carefully consider the request and the impact the request would have on the business before making any decision. The fact that such an arrangement has not been trailed before is not a sufficient reason for refusing a request.
When dealing with flexible work proposals:
• consider the actual work requirements of the job;
• determine whether the work requirements are reasonable;
• carefully assess the flexible work proposal, including any pros and cons;
• be objective and genuine, substantiate any reasons;
• discuss any issues and concerns, give reasons for any views reached, and seek alternative options with the employee; and
• consider a trial of the proposal.
*Jan Dransfield (partner) and Will Snow (lawyer) work for Blake Dawson Waldron Lawyers.
This article is intended to provide a summary of the subject matter covered. It does not pur
port to be comprehensive or to render legal advice. No reader should act on the basis of any matter contained in this article without first obtaining specific professional advice.
