What anti-discrimination law reform means for employers in Western Australia
This year, three very public pieces of evidence demonstrated that community expectations about discrimination and harassment in the workplace in Western Australia have changed.
What was the evidence?
- The release of the report of the Standing Committee on Community Development and Justice “Enough” (the FIFO report) following the investigation into sexual harassment against women in the FIFO mining industry in June 2022; and
- The WA Law Reform Commission’s publication (WALRC) final report (LRC report) following an examination of the Equal Opportunity Act 1984 (WA) (EO Act) in August 2022.
What does the LRC report say?
The LRC report was released after more than three years of consultation with a wide range of stakeholders.
Submissions were made by industry groups and unions, highlighting the impact these potential reforms can have on jobs.
The LRC report referred to the Equal Opportunities Commission’s 2020-2021 annual report and its data.
For example, in the 2020-21 fiscal year, the Commission received 564 discrimination complaints. Of these complaints, the most common were discrimination based on impairment (23.4%), race (14.1%), and gender and sexual harassment (11.1%). Discrimination in employment was the largest area of complaint received (45.8%), being more than double the second largest area of complaint.
The LRC report recommended significant changes that will mean Western Australia will align with equal opportunities legislation in other Australian jurisdictions.
What will the government do?
Attorney General John Quigley said the McGowan Labor government “largely accepted the recommendations” contained in the LRC report.
Based on this, it looks like he is moving full steam ahead with the government currently drafting a new EO law.
We expect the new EO Act to incorporate the majority of the WALRC recommendations
Will there be new grounds of discrimination?
While existing grounds for complaint (or protected attributes) will remain unchanged in the EO Act, reforms may include protected attributes:
- Accommodation status will refer to a person’s status as, for example, a tenant. It differs from the question of whether a person has been discriminated against in the provision of accommodation.
- Responsibilities of Caregivers will be separated from the protected attribute relating to broader family status that exists under the EO Act. It is recommended that caring responsibility be defined as the responsibility to care for another person, whether that person is dependent or not (other than in paid employment).
- Employment status will be defined to include being unemployed, receiving a pension or other social security benefit, receiving compensation, being employed on a part-time or casual basis, or undertaking shift or contract work .
- Immigration status will constitute an autonomous ground distinct from the definition of race. The WALRC also indicated that it should be compatible with the Migration Act 1958 (Cth).
- Industrial, union or employment activity will be included to co-exist with current protections in the employment context. However, the proposed inclusion in the EO Act would extend the protections to areas of public life. outside Job.
- Irrelevant criminal record carries the stigma associated with criminal delinquency and can hinder a person’s employment opportunities. It will include a exemption for employers to refuse to offer a job if this criminal record provides proof that the person does not have the attributes that will enable him to fulfill the inherent requirements of the role.
- Irrelevant medical record will include a person’s workers compensation history.
- Legal sexual activity will be similar to sexual orientation but would cover other areas, such as those engaged in legal sex work.
- Personal association will provide coverage to a person associated (as parents or otherwise) with another person who is identified by reference to another protected attribute (e.g. race).
- Physical characteristic would include a person’s height, shape, facial features, weight, natural hair color, alopecia, hirsutism, and birthmarks (but excludes piercings, tattoos, and alterations obtained voluntarily).
- Political belief will be separated from the broader protected attribute of “political and religious beliefs” that exists under the EO Act. It is likely to extend to relatives or associates of the protected person and to all areas of public life under protection..
- Sexual characteristics will provide protections for variations in a person’s sex characteristics that do not correspond to male or female characteristics.
- Subjection to domestic or family violence will be included and can be expanded to include all victims of crime or violence.
The WALRC also recommends removing the disadvantage test under existing EO law and introducing a positive duty on employers to prevent discrimination.
Will the criterion of disadvantage be abandoned?
Currently, EO law defines sexual harassment as an unwelcome sexual advance that disadvantages the complainant.
Both the LRC report and the FIFO report recommended removing the disadvantage test to be consistent with other jurisdictions.
The recommended approach is to define sexual harassment in accordance with the Sex Discrimination Act 1984 (Cth).
Under Section 28A of the Sex Discrimination Act 1984 (Cth), a person sexually harasses another person if:
- the person makes an unwelcome sexual advance or an unwelcome request for sexual favors from the harassed person; Where
- engages in other unwelcome behavior of a sexual nature towards the harassed person,
in circumstances where a reasonable person, having regard to all the circumstances, would have foreseen the possibility that the harassed person would be offended, humiliated or intimidated.
The shift of focus to the conduct of the harasser, instead of the disadvantage suffered by the harassed person, aligns with contemporary community expectations that it is the harasser who should be held to account.
What is the positive obligation and will it be in the new legislation?
The WALRC recommends imposing a positive duty on employers to prevent discrimination, harassment, victimization and defamation at work (see recommendation 121 of the LRC report).
This would require ‘reasonable and proportionate measures‘ (see recommendation 122 of the ARC report), takes into account the size of the obligation holder’s business, the nature and circumstances of the business, the resources available, the operational priorities as well as the feasibility and cost of the measures (see RCL Report Recommendation 123).
The WALRC said the introduction of a positive duty would encourage duty bearers to proactively address discriminatory or harassing behavior while aligning employer systems and procedures with the revised goals of the EO Act.
Although the WALRC recommends the imposition of a positive duty, it is not yet clear whether this will be incorporated into the new legislation currently being drafted by the government.
The WHS law already imposes a positive obligation to reduce psychosocial risks arising from discrimination and harassment in the workplace (and related accommodations, for example, in the FIFO mining industry). However, the EO Act would extend beyond the workplace and include protected areas of public life.
Key points to remember
Change is underway for discrimination and harassment laws in Western Australia.
New protected attributes require updated policies and training for employees so they can understand and adapt to revised expectations for appropriate behavior in the workplace.
If a positive duty is imposed, employers will need to take proactive steps to promote equality and address systemic discrimination in the workplace. If the positive duty is like the one introduced in Victoria, employers will have to:
- make significant investments in coaching and education;
- Audit and update policies, programs, practices and procedures;
- have a prevention program;
- strengthen organizational capacity by developing leadership skills managers and supervisors; and
- integrating psychosocial risks of discrimination, sexual harassment and victimization into the WHS risk management process.
Changes to the no-disadvantage test may also increase an employee’s risk of filing a claim with the Commission.
Busy times ahead for WA employers.