Human Rights at work
In Australia, we do not have a “Bill of Rights” but instead, the protection of various ‘human rights’ has been enacted at both federal and state levels. The legislation provides, clearly, that employers are obliged to address the issue of human rights and to integrate the protection of human rights in their day-to-day business activities and operations. With the scope of protections widening and the procedure for complaints becoming more accessible, this is an increasing area in which many employers are being caught ‘off guard’.
What are the Obligations of Employers?
- The obligations on employers is set out in both federal and state anti-discrimination laws, as well as the Fair Work Act 2009 (C’th). On the federal level, this includes the Sex Discrimination Act 1984 (C’th), Racial Discrimination Act 1975 (C’th) and Age Discrimination Act 2004 (C’th). On the Queensland state level it includes Human Rights Act 2019 (Qld), Anti-Discrimination Act 1991(Qld) and Industrial Relations Act 2016 (Qld).
- Although the scope of the federal and state legislation extends to many areas of activity, within the ‘work and work-related areas’, and in the employer-employee relationship, the rights of workers and the obligations of employers are very clear.
- Under the Anti-Discrimination Act 1991 (Qld) (ADA), employers must not allow workers to be discriminated against, sexually harassed or subjected to vilification by other workers, clients or management.
- This means there must be systems in place to prevent these discriminations occurring. The law clearly imposes obligations on employers to take reasonable steps to prevent or minimize discriminatory behaviour in the workplace.
- The employer will usually be found to be vicariously liable for the actions of any employees for the discriminatory behaviour. The Section 133 of the ADA provides that to avoid liability, the employer must prove, on the balance of probabilities, that they took “reasonable steps to prevent the worker … contravening the Act”. To avoid liability, the employer must have documentary evidence of the workplace systems in place to minimize or prevent the discriminatory behaviour, as well as evidence of application by means of actual training and education of staff.
- In addition to their vicarious liability for the specific discrimination, the employer may also be liable for their failure to have appropriate systems / ‘reasonable steps’ in place to prevent the occurrence of the discriminatory behaviour – with liability under this legislation, as well as potential liability at common law for damages and loss to the employee.
What to do?
- If you are an employer, you must take ‘reasonable steps’ to prevent discriminatory behaviour occurring in your workplace. This means you must have systems in place including education and training of staff and it must be documented. If you find an employee engaging in discriminatory conduct against another employee, you have the right to take appropriate action against that employee including counselling, disciplinary procedures and in some cases, dismissal.
- If you are a worker and have been directly or indirectly affected by discrimination in the workplace, you should seek legal advice about your workplace rights, to determine the most effective avenue for your complaint. Access to both the federal and state Human Rights Commissions is becoming more and more accessible for workers.
- There are no excuses for employers failing to take steps to ensure their workplaces are free of discrimination.
- If you need assistance with any aspect of human rights in your workplace, contact us for an obligation-free consultation.