The Law
Introduction to the law
The legislated expectations and responsibilities are changing across many fronts. Many activities and behaviours at the office, at home or at social occasions, that used to be OK are now being identified as inappropriate behaviour. Employers who ignore this shift, do so at their own risk.
The tragic circumstance which was the catalyst for this change in law, is consistent with past significant changes in Australian laws. This has resulted in the actions of a few, creating a heavier burden for those who were doing the right thing. This burden extends across reporting, collecting of information and managing a business.
While governments make statements about ‘removing red tape’, this is another case of ‘red tape by stealth’.
Employers may face issues if a “Stalking Prevention Order” (Temporary or Permanent) is in place between colleagues in the workplace. The business owner may need to re-arrange work shifts so that the colleagues are not working together or at the workplace at the same time. Where the employer is not able to re-arrange work shifts, there is a complex web of laws and processes to avoid liability to one or both parties.
Overview of the law
Everyone has the right to work in a safe environment that is free from bullying, harassment, discrimination and violence. Everyone has a responsibility to behave acceptably and treat others with dignity, respect, fairness and equality.
These rights and responsibilities are set out in various laws which work together to provide a safe, positive, inclusive and effective workplace, for example, the:
- Work Health & Safety Act
- Workplace Gender Equality Act
- Fair Work Act and Workplace Relations Act
- Anti-Discrimination Laws
- Equal Employment Opportunity Act
- SafeWork Australia: Guide for Preventing and Responding to Workplace Bullying
The Work Health & Safety Act sets out our ‘duty of care’ which means that we all have to take reasonable care to make sure our actions (the things we do) or our inactions (the things we don’t do) do not negatively impact others or cause them harm. Under the legislation, the term ‘person conducting a business or undertaking’ or ‘PCBU’ is a more comprehensive term than ‘employer’. The PCBU must ensure the health and safety of workers while they are at work. The term ‘worker’ refers to anyone carrying out work for a PCBU. Workers must:
- Take reasonable care of their own health and safety in the workplace.
- Not put the health and safety of others at risk
- Comply with reasonable workplace instruction, and
- Cooperate with reasonable workplace policies and procedures
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The Workplace Gender Equality Act aims to promote and improve gender equality in employment, remove barriers to equal participation of women in the workforce, eliminate discrimination on the basis of gender and foster workplace consultation on gender equality. The Act also sets out annual reporting requirements relating to various gender equality indicators.
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The Fair Work Act and Workplace Relations Act, aim to provide a balanced framework for cooperative and productive workplace relations. A worker who has been bullied at work can apply to the Fair Work Commission for an order to stop the bullying.
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The Anti-Discrimination Laws (such as the Australian Human Rights Commission Act, Racial Discrimination Act, Sex Discrimination Act, Disability Discrimination Act and Age Discrimination Act) aim to protect people from specific forms of discrimination and harassment.
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The Equal Employment Opportunity Act, promotes equal opportunity in employment for women and people in designated groups (such as Aboriginal or Torres Strait Islander, migrants, or persons with a disability).
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The SafeWork Australia: Guide for Preventing and Responding to Workplace Bullying focuses on the duty to manage risks under work health and safety laws and provide advice to businesses and workers on how to prevent workplace bullying and how to respond if it does occur.
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Workplace Gender Equality Report
If your organisation has 100 or more employees (excludes public sector) then you are required to report annually to the Workplace Gender Equality Agency against the six Gender Equality Indicators (GEIs) including:
- GEI 1: gender composition of the workforce
- GEI 2: gender composition of governing bodies of relevant employers
- GEI 3: equal remuneration between women and men
- GEI 4: availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities
- GEI 5: consultation with employees on issues concerning gender equality in the workplace
- GEI 6: any other matters specified by the Minister in a legislative instrument: Sex-based harassment and discrimination.
This report is due for the previous year’s data between 1st April and 31st May 2015 and is required by law under the Workplace Gender Equality Act (2012).
In addition, if your organisation has 500 or more employees, you must also report against the additional compliance requirements or ‘minimum standards’ for the period 1st October 2014 to 31st March 2015. The additional reporting is required by law under the Workplace Gender Equality (Minimum Standards) Instrument 2014.
For assistance in collecting your data or lodging your report, contact us on 1300 362 226.
For more information on the legislation and reporting requirements refer to the Workplace Gender Equality Agency website on www.wgea.gov.au.
