Chapter 12

A Journey through Australian Workplace Rights and EEO

In This Chapter

Working out what unlawful discrimination means

Treading carefully around workplace rights

Creating your workplace strategy

Respecting privacy and personal information

Homing in on suitability, not disability

A ccording to the Australian Macquarie dictionary, to discriminate means (1) to make a distinction, as in favour of or against a person or thing: to discriminate against a minority and (2) to note or observe a difference; distinguish accurately: to discriminate between things.

Australian governments have implemented anti-discrimination law over many years to protect people from discrimination and harassment in their employment, their education and in other aspects of public and private life. However, not all actions that might be described as discriminatory are unlawful. In this chapter I explain what is meant by unlawful discrimination at work and discuss how the national, state and territory laws impact on the way you can employ people in your business.

While not every action that breaches the law is characterised as discriminatory, these actions may nevertheless contravene an employees’ workplace rights. This relatively new area of employment regulation is a minefield for employers. I explain these workplace rights and what you can and can’t do to stay on the right side of them.

Developing workplace policies that describe your expectations of staff behaviour, how you aim to educate the people under your control and your procedures to resolve complaints are a must for your small business. I provide some practical advice on using employment policies to achieve those ends.

You also need to be sensitive in the manner in which you ask prospective and current staff for personal information, and how you store and manage it confidentially. I explain how to do this properly.

Finally, I discuss the exemptions to anti-discrimination and workplace rights, explaining the concept of inherent requirements of the job, and providing some practical tips on how to manage difficult decisions where either current or prospective employees have disabilities affecting their capacity to perform work in your small business.

Understanding Unlawful Discrimination

Discrimination in employment is unlawful (rather than perhaps unfair) where an employee is disadvantaged or treated less favourably by an employer in some aspect of their employment because of a particular personal characteristic or attribute. Motivation for unlawful discrimination isn’t relevant. The person only needs to show that he has been treated less favourably or been disadvantaged, and that a reason (not necessarily the only reason) for disadvantaging the person was because of the characteristic. National, state and territorial governments have enacted various grounds upon which discrimination is unlawful and the list seems to grow as the years progress.

In summary, the personal characteristics or attributes to which unlawful discrimination in employment applies across Australia are the following:

Age
Breastfeeding
Carer status
Colour
Criminal record
Disability
Family responsibilities
Gender
Marital status
Medical record
Parental status
Physical features
Political belief
Pregnancy
Race
Religious belief
Sex
Sexual orientation
Trade union activity
Personal association with anyone that possesses the preceding characteristics

Unlawful discrimination in employment can happen in various situations, including

Decisions to offer or not offer employment
Hostile working environments resulting from bullying and harassment
Hours of work
Overtime requirements
Promotional and training opportunities
Salary and other benefits
Travelling overnight for work

Under Victorian equal opportunity law, for example, an employer must not unreasonably refuse to accommodate the parental and caring responsibilities of the employee. The majority of the Australian anti-discrimination laws recognise that discrimination can occur indirectly through imposing on people obligations that they are less able to comply with than others who don’t share their particular characteristics.

I cover the nature of direct and indirect discrimination prohibited in Australian employment in the following sections.

Direct discrimination of staff

Direct discrimination in employment occurs when a person is treated less favourably than others because of a particular characteristic or attribute.

Three important elements are required to prove direct discrimination:

Less favourable treatment. An employee must show that she has suffered some loss or disadvantage as the result of the action of the employer because of the less favourable treatment. For example, termination of employment or denial of a benefit that other employees are provided.
Treatment based on attribute or characteristic. A link must be shown between the behaviour complained of and the prohibited ground. That is, the characteristic or attribute of the employee is the reason or one of the reasons for the treatment.
Treatment occurs in circumstances which are the same or not materially different. In order to establish direct discrimination, the employee must show that his less favourable treatment has occurred in circumstances that are the same as, or similar to, the circumstances of the non-discriminatory situation — that is, the treatment of the other employees.

If your small business operates in Victoria and the Australian Capital Territory, direct discrimination can be proven simply if a person with a particular attribute can show she has been treated unfavourably because of that attribute — that is, the person doesn’t need to compare the treatment with other staff or some hypothetical situation. This is also the case under the Australian Racial Discrimination Act 1975.

Indirect discrimination of staff

Indirect discrimination in employment occurs where the employer imposes a requirement or condition on an employee or employees that has, or is likely to have, the effect of disadvantaging people with that attribute, and that requirement is not reasonable.

For example, the age old practice of ‘Last on, first off’ to select people for retrenchment during downturns in business (where the last person hired is the first to be retrenched) can indirectly discriminate against some staff. Younger people are more likely to have shorter periods of service and, therefore, more likely to be retrenched.

Another example of indirect discrimination would be where an employer doesn’t consider a request for part-time work from a female employee returning from parental leave, because this policy is more likely to disadvantage women (who are still usually the primary carer for younger children).

An explanation of the intricacies of how the various laws decide whether employees have been indirectly discriminated against in relation to their employment conditions is complex, legalistic and beyond the scope of this book. Suffice to say that in order for employees to show that they have been indirectly discriminated against, the following elements must be evident:

The employer has imposed a condition or requirement on employees
A substantially higher proportion of people without a relevant attribute or characteristic are able to comply with the requirement, as compared with those of the same status as employees with the attribute
The employee(s) with the attribute cannot comply with that requirement
The requirement or condition isn’t reasonable, having regard to all the relevant circumstances

The final element of the test in the preceding list is important. A requirement — or condition or policy for that matter — is only unlawful if it’s unreasonable in all the circumstances.

Reasonableness is a question of fact that can only be determined on a case-by-case basis. However, the following factors common to small business may be taken into account in assessing reasonableness in an employment context:

Cost of implementing alternative measures
Disadvantage disproportionate to the result sought by the employer
Inherent requirements of the job in question
Safety

Finally, the onus is generally on the person complaining to show that the indirect discrimination was unreasonable. However, to make things complicated, the onus is reversed in some situations. For example, employers (assuming they’re the ones complained about) must prove the conduct or decision was reasonable where a complaint is brought under the Sex Discrimination Act 1998, Queensland’s Anti-discrimination Act 1991 and the ACT Discrimination Act 1991. The onus is also on the employer to disprove breaches of workplace rights under the Fair Work Act 2009.

Discrimination against prospective staff

The laws prohibiting discrimination aren’t limited to the circumstances of your actual employees. People who may wish to work in your business — prospective employees — also have the right to complain of discrimination if you choose not to employ them because of one or other of the characteristics/attributes constituting prohibited grounds. The implications for the way in which you select people to work in your business are self-evident. For example, although engaging candidates in conversations about their lives is acceptable, you must be careful not to ask questions that give the impression that you would exclude them from employment on the basis of attributes such as political beliefs, religious attitude and race.

Asking prospective employees about personal attributes is acceptable only if the questions relate to the selection criteria and nature of the job. Stay away from conversations about personal appearance unless direct relevance to the job is clear. Telling a prospective employee she looks really great in that short skirt isn’t acceptable. An explanation of the dress code of your business is acceptable.

Finally, if you ask a female job candidate whether she intends to have children, I hope your business is handling toxic chemicals or other material hazardous to unborn children. If it isn’t, you will most certainly find yourself on the wrong side of anti-discrimination laws. A better way is to ask whether anything would prevent prospective employees from performing the job.

Refer to Chapter 3 for a more detailed discussion of recruitment.

Adverse Action and Workplace Rights

The Fair Work Act 2009 contains general protections of employees from victimisation, discrimination and action that adversely affects them because they have exercised a workplace right.

The general protections are similar in nature to anti-discrimination laws. They are also similar to protections that have traditionally been available for employees against employers who prejudice their employment. For example, employees who were prejudiced against because they complained about their terms and conditions of employment, joined a trade union, or were absent from work due to illness or injury.

However, these general protections are significantly broader because they extend to

Employees
Employers
Independent contractors
Prospective employees

The main purpose of the general protections is to prohibit the taking of adverse action in connection with a person exercising a workplace right.

Understanding how the general protections work in practice is very important, because if you ignore this employment responsibility the cost of legal fees and potential compensation from successful claims against you could very well bankrupt your business.

Understanding adverse action

An employer takes adverse action against an employee if the employer:

Dismisses the employee (see Chapter 17).
Injures the employee in his employment — any injury of a compensable kind. That is, the employee suffers work-related injuries that entitle him to workers compensation payments.
Alters the employee’s position to the detriment of the employee — including not only legal injury but also any other form of disadvantage.
Discriminates between the employee and other employees (refer to the section ‘Understanding Unlawful Discrimination’, earlier in this chapter).

The key question to answer when assessing adverse action is whether employees are worse off after you alter their employment arrangements. For example, not offering overtime to one employee or changing the working hours of an employee to night shift or weekends could be described as an alteration to the position of an employee to the employee’s prejudice.

A prospective employer takes adverse action against a prospective employee by:

Refusing to employ the prospective employee
Discriminating against the prospective employee in the terms and conditions offered to the prospective employee

A principal contractor takes adverse action against a sub-contractor if the principal:

Terminates the contract
Injures the independent contractor in relation to the terms and conditions of the contract
Alters the position of the contractor to the contractor’s prejudice
Refuses to make use of, or agree to make use of, services offered by the independent contractor
Refuses to supply, or agree to supply, goods or services to the independent contractor

The extension of the general protections to independent contractors provides sub-contractors with an additional and very significant source of protection.

For more on how adverse actions can potentially get you into trouble, see the section ‘Navigating the minefield of workplace rights’, later in this chapter.

Understanding workplace rights

Employees (and independent contractors) have workplace rights derived from just about every law, order or contract that they have in place with a business. For example, a person has a workplace right if he is entitled to the benefit of an award, employment contract, workplace law or an order made by an industrial relations tribunal such as the Fair Work Commission. A person also has a workplace right where she has a role or responsibility, such as a union delegate or health and safety representative, and where she’s able to make a complaint or inquiry to regulatory bodies such as the Fair Work Ombudsman under a law, order, award or employment contract. This pretty much includes everyone who is employed in a job or as a contractor in Australia.

Interpreting the legal mumbo jumbo of the Fair Work Act 2009 into plain English, and putting it into the context of small business, the Act means the following:

An employee or contractor that you engage or propose to engage has enforceable workplace rights under a modern award, employment contract, service contract, statutory employment laws such as the Fair Work Act 2009, workplace health and safety laws and even your small business employment policies.
Workplace rights include the right for employees to complain or ask questions about their terms and conditions of employment and health and safety, the right to join trade unions, and the right to refuse to make an individual flexibility agreement, enterprise agreement, or to engage in lawful industrial action such as approved strike action.
Prospective employees have the same workplace rights that they would have if employed by you.

In practical terms, workplace rights are really the same as terms and conditions of employment.

Navigating the minefield of workplace rights

You can infer from the definitions provided in the preceding sections that adverse action is very broadly defined and covers virtually any action that has a detrimental impact on an employee or independent contractor. However, small-business owner and employer problems only arise if the adverse action is taken because the employee or contractor has or proposes to exercise a workplace right.

Employees and contractors will invariably be unhappy with you when you do something that they perceive to be against their interests. Nevertheless, hard decisions are inevitable — you must make choices in the best interests of your small business and often those choices adversely impact on others. However, not all unhappy employees and contractors can pursue an action for compensation through the Australian courts claiming that you have adversely acted against them for exercising a workplace right.

Danger zones

Understanding that people have workplace rights, focusing on the operational and strategic needs of your business and not the person, honest communication and a sharp sense of the ‘danger zones’ enables you to see the hazards ahead and learn how to navigate your way safely through the minefield of workplace rights.

The workplace rights danger zone barometer shown in Figure 12-1 can help you with this. For example, your action in response to frequent absences from work due to illness or injury is potentially very dangerous because breaching workplace rights in these circumstances is easy to do and may result in substantial fines and penalties. Therefore, you will adopt strategies to minimise the risk of breaching workplace rights commensurate with the level of risk. This could include adhering to a written policy and procedure on how to manage such absences consistent with the workplace rights. The policy might include offering the employee an opportunity to confidentially disclose the health issues, or a request to speak to their treating medical practitioner to discuss how you can practically assist the employee to better health. These sorts of actions mitigate the risk of breaching workplace rights, and will work in your favour especially if subsequently you have to adopt more serious action such as dismissal. See the following section for tips on how to adopt appropriate strategies.

9781118640401-fg1201-fmt.tif — Figure 12-1: Workplace rights danger zone barometer.

The reverse onus of proof

Where an allegation is made that an adverse action took place, the courts will presume that you took adverse action for a prohibited reason — that is, because the person exercised a workplace right. In order for you as employer to satisfy the reverse onus and remove the presumption that you acted for a prohibited reason, you must provide evidence of an alternative reason for the alleged adverse action. You should also tell the employee the reason. This shouldn’t be hard to do if you have taken actions to protect the business and otherwise acted in accordance with good management practice — such as documenting the warnings provided and giving the employee an opportunity to respond (refer to Chapter 11 for more on this).

If you dismiss employees or contractors because they haven’t performed the work satisfactorily, say so — even if you’re unsure that you’ve completely complied with every element of a fair procedure. Don’t dress up the dismissal in an explanation that isn’t true. If you did dismiss someone for reasons unrelated to performance and offer an explanation that you think the judge wants to hear but is not true, you won’t succeed. Tribunals and courts have a talent for exposing dubious explanations and falsehoods.

Coercion and undue influence and pressure

One important point under this general topic of workplace rights is the obligation not to coerce or exert undue influence or pressure on another person to exercise a workplace right, or exercise the workplace right in a particular way.

An example of this would be offering employment conditional on the person entering into an individual flexibility arrangement. This is expressly prohibited. Consequently, any arrangement that varies the operation of modern award conditions, such as the arrangement of the hours of work, payment of allowances, loadings, penalty rates and overtime, must be negotiated after employment has commenced.

The prohibition on coercion and undue influence and pressure also applies to action to prevent a person from exercising a workplace right.

Get Proactive: Develop a Strategy

As is the case with almost all aspects of employment regulation, the best strategy to ensure you’re able to comply with the law is to develop policies and procedures to explain your objectives and the general principles that you intend to abide by in relation to the topic. And then update them regularly to ensure they’re still current.

Secondly, prevention is better than the cure and, therefore, establishing an educative program during inductions and beyond to ensure that your staff understand and work in accordance with your policy is worthwhile.

Go to www.dummies.com/go/hrsmallbusinessau for sample access, equity and anti-discrimination, anti-bullying and sexual harassment policies that you can model your own on.

Each employment policy should cross-reference other related policies and forms that you use in dealing with this area of employment. Having specific policies is better than relying on a general code of conduct. Refer to Chapter 8 for more on employment policies.

Making reasonable adjustments for disability

As discussed at the start of this chapter, you’re expected to make reasonable adjustments to accommodate persons with disabilities when offering employment in your small business. The expectation is limited to whether or not the accommodation is practical in all the circumstances. Thus your recruitment and employment strategy must include a procedure for considering the practicality of adjustments if faced with employees or prospective employees who have a disability that inhibits their chances of employment and successfully performing a job.

The Human Rights Commission publishes information on practical measures to make reasonable adjustments to accommodate employees and prospective employees with a disability. Here are a few examples of adjustments provided:

Adjustments to the hours of work and use of leave entitlements to accommodate the person’s capacity. For example, part-time work.
Adjustments to work methods, such as use of better equipment that can be used by persons with physical disabilities.
Adjustments to computer software and settings and telephone equipment that enables hearing- and sight-impaired employees to work as efficiently as others.
Training co-workers or supervisors so they can understand the person’s disability and, therefore, adapt their own working methods to accommodate the person with a disability.
Provision of interpreters, readers, attendants or other work-related assistance.

Probably the most contentious issue for your small business is the cost of making adjustments to the facilities or property, and the provision of equipment. You may not have to pay for every adjustment to accommodate a person with a disability. Investigate the possibility of subsidies and grants from government agencies. The key to your strategy is making the effort to find out what’s practical and then being prepared to implement what’s reasonable for your small business and what gives the person a reasonable chance of succeeding in the job.

You’re not obligated to adjust the inherent requirements of a job to accommodate people with a disability in employment. You can be quite clear about this with prospective employees. Just make sure you can explain the inherent requirements.

Educating staff

Educating yourself and your staff on the obligations and responsibilities under the law is probably the most constructive activity that you can undertake to both minimise the risk of claims against your business, and promote a workplace that’s free from discrimination and harassment and a really good place to work.

If you are ever challenged by a person from the Human Rights Commission the first question they will ask you is, ‘Where is your recruitment and employment policy and when did you last train your staff?’

Two stages of the employment relationship with regards to discrimination and workplace rights are vitally important to educate staff on, as follows:

The commencement of employment: One of the purposes of providing formal induction programs for staff is to communicate the values that you wish to see applied in your business and set expectations for the way in which the business is conducted, including the interaction with fellow staff, customers and suppliers. Consequently, this issue is not something that you just require employees to ‘tick the box’ on. Reading and acknowledging the policy statement is only meaningful where it has been accompanied by a thorough explanation from you. Refer to Chapter 8 for more on formal induction programs.
Throughout employment: The issue of discrimination and workplace rights is a topic that can usefully be raised from time to time with staff in order to reinforce the message that everyone is expected to conduct themselves in a manner that does not unlawfully discriminate against others in the workplace.
Serious incidents that attract media attention such as bullying and sexual harassment often raise the level of awareness of the subject and may be accompanied by a spike in complaints to regulatory authorities. These incidents are a good opportunity to conduct refresher courses on the subject of discrimination and workplace rights. Formalised training isn’t always necessary. Instead, the refresher may be as simple as a five-minute agenda item in the weekly staff meeting. Or the training required may be a full review and induction of all staff. You can obtain resources from the regulatory agencies such as the Australian Human Rights Commission (www.humanrights.gov.au) and Fair Work Ombudsman (www.fairwork.gov.au).

Disclosing Personal Information Isn’t Against the Law

A common misconception among small-business owners is that employment records are subject to privacy laws, meaning you can’t ask prospective employees about their health or a disability. However, small businesses with an annual turnover of $3 million or less aren’t covered by the Privacy Act 1988, and employment records aren’t covered by privacy law even if your business does earn in excess of $3 million.

Privacy laws don’t prevent you from obtaining personal and sensitive information about employees or prospective employees in order for you to fulfil your obligations under anti-discrimination laws.

Table 12-1 shows some legitimate reasons for collecting personal information from employees and prospective employees. I’ve included in the table the primary reasons that are permissible.

Table 12-1 Reasons for Collecting Personal Information from Employees and Prospective Employees

Information	Employees	Prospective Employees
Pre-existing work-related illness or injury	Workplace health and safety, including rehabilitation and reasonable adjustments to work arrangements	Disclosure required for workers compensation insurance and reasonable adjustments to work arrangements
Physical illness and injuries	Capacity to perform inherent requirements of job Reasonable adjustments to work arrangements	Capacity to perform inherent requirements of job Reasonable adjustments to workplace
Mental illness	Capacity to perform inherent requirements of job Reasonable adjustments to work arrangements	Capacity to perform inherent requirements of job Reasonable adjustments to work arrangements
Disability	Capacity to perform inherent requirements of job Reasonable adjustments to work arrangements	Capacity to perform inherent requirements of job Reasonable adjustments to work arrangements
Family and carer responsibilities	Hours of work Business travel Individual flexibility arrangement (IFA)	Hours of work Business travel

Asking questions of people is not generally discriminatory. You can ask almost any question and obtain almost any information from an employee or prospective employee if the information is directly relevant to the performance of the job. Discrimination and breaches of workplace rights generally arise from what you do with the information that you have obtained (for example, choose not to employ someone based on it). So focus on the job and not the person and you should stay out of trouble.

Focusing on Suitability Not Disability

Not all discrimination is unlawful. In fact, anti-discrimination laws nationally and in all states and territories contain exemptions. Religious organisations have a general exemption from the application of anti-discrimination laws as long as the action is taken in good faith and to avoid injury to the religious susceptibilities of adherents to that religion. Your small business may discriminate against employees and prospective employees where a genuine occupational qualification to perform a job exists and where a person is unable to perform the inherent requirements of a job in your business. I discuss both of those concepts in the following sections.

Genuine occupational qualification

Under most anti-discrimination law, a limited exemption exists to cover a genuine occupational requirement. That is, you have a genuine requirement that an employee must have certain abilities to perform a specific role. This limited exemption generally only applies to particular types of occupation, for example:

Theatrical performances and, in some cases, in relation to food outlets selling food of a particular nationality
Personal decency in relation to change-room attendants, or other persons required to work in areas where persons of a particular gender may be in a state of undress

Performing the inherent requirements of the job

Anti-discrimination law recognises that accommodating an individual at a workplace due to disability (also referred to as physical or mental impairment) is sometimes difficult. An employer discriminating on the grounds of disability is generally not unlawful if

The employee can’t perform the inherent requirements of the job as a result of the disability.
Providing services or facilities required by the employee in order to carry out the inherent requirements of the job imposes an unjustifiable hardship on the employer.

This exemption is particularly important in the selection of a job applicant or the termination of an existing employee’s employment where he has become unable to perform the tasks and duties of his role. I discuss the issue of when it is permissible to dismiss an employee who’s no longer capable of performing the inherent requirements of the job in Chapter 17.

Understanding inherent requirements

The inherent requirements of the job are the fundamental aspects of the job that a person must be able to perform in order to do the job.

The nature of inherent requirements was explained by Chief Justice Brennan in a famous 1998 High Court case (Qantas Airways Limited v Christie) on whether compulsory retirement of airline pilots was unlawfully discriminatory:

The question whether a requirement is inherent in a position must be answered by reference not only to the terms of the employment contract but also by reference to the function which the employee performs as part of the employer’s undertaking and, except where the employer’s undertaking is organised on a basis which impermissibly discriminates against the employee, by reference to that organisation.

In other words, no general rule determines inherent requirements in every instance. Each job function must be considered in the context of the particular business to uncover the fundamental or inherent requirements to successfully perform the work.

The best starting point is to answer the question: Is the job able to be performed to the minimum standard required if the particular task or duty at issue was not able to be completed by any person? If the answer is no, the tasks or duty is probably an inherent requirement.

An example would be a commercial sales representative job, where a requirement is to travel to customers’ business premises to demonstrate products. A person who is visually impaired may not be capable of obtaining a vehicle driver’s licence and, therefore, is unable to fulfil this function without considerable support provided by you. This means an inherent requirement of the job is the ability to drive a motor vehicle — otherwise, the job can’t be performed to a satisfactory minimum standard.

The inherent requirements exemption also applies to the anti-discrimination provisions of the Fair Work Act 2009.

Unjustifiable hardship

The unjustifiable hardship exemption is difficult to establish. Whether unjustifiable hardship exists depends on all the circumstances of each situation, including the

Cost and financial impact on the business
Likely impact on the workplace
Impact on other employees

These factors are weighed against the benefit that will accrue to the disabled employee.

Your small business is far more likely to be able to rely upon this exemption than a large company or government department.

You’re not required to adjust the inherent requirements of a job to accommodate a person with a disability. Applying the example of the commercial sales representative from the preceding section, the question of whether or not an adjustment would cause unjustifiable hardship depends upon how much it would cost to provide the visually impaired person with a driver to attend customer business premises. I suspect this would cause unjustifiable financial hardship to most small businesses.