How to meet your legal positive duty obligations

By Ilga Horvat

Ilga Horvat from Boutique HR examines the responsibilities of wine business employers under new workplace requirements.

Effective from 12 December 2023 the Australian Human Rights Commission (AHRC) has new powers to investigate and enforce compliance of employers and persons conducting a business or undertaking (PCBUs) positive duty obligations.

To clarify, PCBUs include sole traders, principal contractors, unincorporated associations, partnerships and franchisees. In addition, it covers those traditionally considered to be employers, self-employed people and volunteer organisations. PCBUs also include local government councils, universities, cooperatives and government departments and authorities.

In December 2022 the Sex Discrimination Act was amended to introduce a new positive duty on employers and PCBUs to eliminate workplace sex discrimination and harassment. A 12-month transition period was imposed to allow workplaces time to implement processes and initiatives to prevent and respond to workplace sexual harassment actively.

The focus is now on taking preventative action to create safe, respectful and inclusive workplaces, rather than having a reactionary approach.

Employers and PCBUs have a legal positive duty obligation to eliminate the following unlawful behaviour from occurring:

  • “discrimination on the grounds of sex in a work context
  • sexual harassment in connection with work
  • sex-based harassment in connection with work
  • conduct creating a workplace environment that is hostile on the grounds of sex
  • related acts of victimisation.

The Commission refers to this conduct as ‘relevant unlawful conduct’.” (humanrights.gov.au).

Sex discrimination in a workplace occurs when someone is treated less favourably than another person because of their sex, gender identity, intersex status, sexual orientation, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities. This stems from employers or managers holding assumptions about the type of work someone can do based on these criteria.

The AHRC defines sexual harassment as “an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.” “A working environment or workplace culture that is sexually permeated or hostile will also amount to unlawful sexual harassment. Some of the factors emerging from the case law which may indicate a potentially hostile environment include the display of obscene or pornographic materials, general sexual banter, crude conversation or innuendo and offensive jokes.”

As an employer and PCBU you must be fully informed and up to date on current legislation.

 

‘I didn’t know’ will not be a reasonable excuse for not meeting your obligations.

 

A significant loss of productivity occurs when a toxic work environment exists. If that is not enough for an employer to act on these obligations then note that large penalties are being imposed for breaches. It is imperative that organisations and their people managers are fully informed and have implemented positive duty initiatives.

What do you need to do to comply with the positive duty obligations?

It is important to note that all organisations and businesses in Australia must comply with these positive duty obligations regardless of size or resources. This includes self-employed small, medium and large businesses, sole traders and government.

The AHRC has published extensive guidelines to assist employers and PCBUs in complying with these obligations. Here is a summary of the seven standards which provide the framework to use to prevent these unlawful behaviours:

  • Leadership: Leaders are to understand the positive duty obligations and what conduct is unlawful. Senior leaders should role model respectful behaviour that is inclusive and equitable. They are responsible for ensuring that all that is reasonable and practicable is done to eliminate workplace sex discrimination and harassment and create a safe, respectful and inclusive workplace. They are responsible for ensuring the measures taken are updated, reviewed and communicated to their employees, agents and third parties.

The extension of the positive duty to the conduct of third parties relates to the risk they could hold to exposing their workers to unlawful sex discrimination and harassment.

 

The Human Rights website has detailed information about what constitutes this unlawful conduct.

See www.humanrights.gov.au/our-work/employers/sex-discrimination

And

www.humanrights.gov.au/our-work/projects/sexual-harassment-workplace-legal-definition-sexual-harassment 

 

  • Culture: An organisation must foster a safe, respectful and inclusive workplace. This includes encouraging employees and managers to call out and report discriminative and unlawful behaviour, minimise harm and hold people accountable for their actions.

Practical ways this could be done are:

  • by managers and team leaders modelling behaviour,
  • ensuring company documents and policies are worded appropriately to remove any discriminatory language,
  • implement a code of conduct which highlights a no-tolerance policy for discriminatory and unlawful behaviour,
  • training all workers in what behaviour is expected and will not be tolerated,
  • holding each other to account in informal day to day interactions if any discriminatory, disrespectful, unlawful behaviour occurs.
  • Putting up posters highlighting that there will be no tolerance for sexual discrimination and harassment and identifying what those behaviours look like.
  • Flexible work policies, job sharing, encouraging balance in work and life and not penalising employees for requesting time away from work to tend to a family obligation.
  • Knowledge: A code of conduct, equality policies, guidelines for workplace behaviour, and responsibilities of the employer and employees, agents and third parties should be implemented. Every employee should be trained in these and have access to this material so they understand;
    • what unlawful behaviours will not be tolerated
    • what to do if they witness or experience this behaviour
    • The consequence of behaving unlawfully in the workplace

Employers and PCBUs are to train their employees, agents and any relevant third parties in these practices. It is important to ensure that translated materials where required are also available.

 

  • Risk management: A risk-based approach is to be taken by employers in prevention and response to unlawful conduct and equality risk. Under WH&S laws PCBUs are required to eliminate or minimise risks to psychological health and safety. Sexual harassment is a psychosocial hazard that must be eliminated. In a practical sense this means utilising the same risk assessment approach to unlawful, sexual harassment and discriminatory behaviours, situations and complaints in the workplace.

This means:

  • Identifying and assessing the risk of this conduct occurring and health and safety impact it may have
  • Implementing effective controls to address the risk
  • Regularly reviewing control measures for effectiveness.

Taking a consultative approach with employees is important so that the effectiveness of policies, guidelines and practices can be assessed. Toolbox talks should include an agenda item to cover consideration for eliminating unlawful and discriminatory behaviour and situations where it could occur.

 

  • Support: Organisations and PCBUs are to ensure support is available to all employees including leaders and managers who experience or witness unlawful conduct. All employees need to know what support is available and where they can access it.

Support can be informal such as asking if they wish to move to another area or leave the workplace to avoid interacting with the person engaging in the said behaviour, calling them to check on them, and providing information about counselling services. Formal support can include assigning a designated mental health first aider or WH&S support officer to manage the case and providing access to counselling sessions as part of formal Employee Assistance.

 

  • Reporting and response: Workers should be provided with appropriate options for reporting unlawful behaviour, and those options should be regularly communicated. All reports should be responded to in a consistent and timely manner, and in a way which minimises harm to victims. A grievance policy should be implemented. In addition to this, a procedure should be communicated to all employees, agents and third parties as appropriate which outlines the process one should take if informally or formally reporting sexual harassment, discrimination, bullying and harassment as well as instances of unsafe and unlawful behaviour. This policy must outline what the person reporting and experiencing the behaviour should expect to occur once the behaviour is reported.

 

  • Monitoring, evaluation and transparency: Businesses are expected to collate data on unlawful behaviour occurring in the workplace. This follows from the risk management approach already outlined, where regular reviews of risks and the effectiveness of measures implemented to manage risks and hazards are conducted. The data collected should be reviewed in an effort to improve work culture and eliminate unlawful behaviours. This information should be communicated back to the employees and they should be kept updated with trends, patterns and actions taken by the business to address unlawful conduct and risks.

There are numerous recently tried cases where these positive duty obligations have been tested. Claims of unlawful discrimination or sexual harassment have led to record payouts. One recent case in particular shows the importance of employers’ need to take these obligations seriously. This case highlights the importance of having processes in place that have been communicated to employees for managing sexual harassment.

In this case an employee of a Sydney-based jeweller was granted a record-breaking $268,000 in damages after the Federal court found her employer subjected her to victimisation and sexual harassment. After finding in the employee’s favour, Federal Court Justice Katzmann ordered the business to compensate the employee with $140,000 in general damages, $15,000 in aggravated damages, $23,070 for past economic loss, $46,284 for future economic loss, $3000 for future out-of-pocket expenses and $40,000 for victimisation. Victimisation is where someone is treated less favourably for making a complaint and general damages are granted for her humiliation and distress. This ruling shows the stricter approach that the government has taken to workplace sexual harassment.

The important point for employers to note from this case is highlighted by Will Snow, Director, Snow Legal. He notes, “It goes to show that a business in this situation, without any policies at all, could never demonstrate that it had taken reasonable and proportionate measures to stop unlawful conduct from occurring.”

For details of the case, review the summary provided on the AHRI news site: www.hrmonline.com.au/section/legal/sexual-harassment-record-payout/#msdynttrid=O4HfWVtMlQlo67Al3ZMorZ3Zf31M4SruYfgBv-Kx354

Next steps:

Review your existing policies and processes considering the above requirements.

  • If you have nothing in place, then start with a simple policy that defines sexual harassment and discrimination and notes what to do if this behaviour is experienced and witnessed.
  • Display some posters and fact sheets in the office that support this policy and process.
  • Communicate the policy and process in your new starter onboarding.
  • Have some open discussions and conduct a survey amongst your team to get feedback about your organisational culture. Consider making it anonymous so your team are more likely to be honest, then communicate the results back to the team and have an open discussion about what improvements could be made. Implement suitable initiatives accordingly.
  • Include an agenda item covering sexual harassment and discrimination risks in your WH&S meetings.

There are many resources made available on the Respect@work and Australian Human Rights Commission websites. Alternatively, if you do not have the time or resources to manage this in-house please contact us at Boutique HR at www.boutiquehr.com.au/contact-us  and we can implement systems for you to manage these obligations.

This article was originally published in the January issue of the Australian & New Zealand Grapegrower & Winemaker. To find out more about our monthly magazine, or to subscribe, click here!

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Independent contractor or employee?

The following extract is from the article Independent contractor, Labour Hire Worker
or Employee? First published in the Wine & Viticulture Journal, November/December 2015. Author Sarah Hills

EMPLOYEE OR INDEPENDENT CONTRACTOR
Just because a person wishes to be engaged as a contractor, has an ABN number and you enter into an agreement calling them an ‘independent contractor’ does not automatically mean they are one. Often relationships are disguised in being given a label when, in fact, the relationship in practice is something
different. The courts look at a number of indicators in the relationship and weigh them up to assess who holds the control in the work or task to be performed.

An employee performs work under the ‘control’ of another person in exchange for payment for the services he or she provides. Indicators of an employment relationship include:
• Control by the employer. For example, instruction as to how to carry out duties, uniform and hours of work, etc. Control indicates an employment relationship.
• The expression of the relationship by the parties in writing. For example, calling a contract an ‘employment contract’ or a ‘service agreement’ is persuasive but not determinative.
• The terms of the contract. For example, is paid annual leave provided? Employment entitlements such as annual leave, long service leave and parental leave are employment entitlements.
• Was the worker in business on his/her own account? Were tax invoices rendered? Did the worker use his or her own ABN? Is there an entrepreneurial-like element about the business?
• The worker operating an independent business indicates that the worker is an independent contractor.
• Whose tools and equipment are being used?
• Was the worker required to work exclusively for the company? Exclusivity of arrangement indicates an
employment relationship.

Independent contractors need to manage their own business and acquire their own insurance for their own negligence and own income maintenance/protection. They are distinguishable from employees (and labour hire workers) by the fact that they take personal risk associated with their business activities. While an independent contractor is responsible for their own business (including any employees they employ) when on your site they have a joint responsibility with you for your employees with regards to work health and safety. The importance of knowing who you are contracting with is highlighted by the fact that an intentional act to disguise an employment relationship by calling the employee an ‘independent contractor’ is an offence called ‘sham contracting’. If sham contracting is proved there are heavy penalties to be incurred by an employer (both as a company and/or the individuals managing
the company) under the Fair Work Act 2009.

To access the full article, visit Wine & Viticulture Journal.

New law protects small business from unfair contract terms

New law protects small businessHas another business offered you a standard form contract? Or do you offer standard form contracts to other businesses?

If so, you need to be aware of the new law that protects small businesses from unfair contract terms.

Many businesses offer standard form contracts on a ‘take it or leave it’ basis where there is little or no opportunity to negotiate the terms.

This new law will apply to standard form contracts entered into or renewed on or after 12 November 2016 where:

  • at least one of the businesses employs less than 20 people, and
  • the price of the contract is no more than $300 000, or $1 million if the contract is for more than 12 months.

The ACCC, Australian Securities and Investments Commission, and state and territory offices of fair trading will enforce this law, and if the court finds a term unfair, that particular term will be void and treated as if it never existed.

Examples of terms that may be unfair are ones that:

  • allow one business, but not the other, to change or cancel the contract, or to limit or avoid their obligations
  • penalise one business, but not the other, for breaching the contract.

So if you offer standard form contracts, start reviewing your terms and conditions to make sure you’re doing the right thing.

Or, if you’re a small business and you’ve been given a standard form contract which you think includes an unfair term, find out what your protections are under the new law.

For more information

  • Read the online guidance at www.accc.gov.au/uct
  • Watch the animated videos on the ACCC YouTube channel – one is about the rights of businesses that receive standard form contracts and the other is about the obligations of businesses that offer them.
  • Read the media release
  • Call the ACCC small business helpline on 1300 302 021 if you have any queries.

Source: http://discoverdome.org.au/

South Australian wine grape growers to go into arbitration with unions over working conditions

Source: abc.net.au

The South Australian Wine Industry Association will follow through on a submission to the Fair Work Commission to change the modern award rate for casual employees working in the wine sector.

The SA Wine Industry Association wants to halve the minimum engagement time casual employees are entitled to work, from four to two hours.

The current award rate stipulates that employers must either provide four hours work or four hours pay each time they engage a casual worker.

Chief executive of the SA Wine Industry Association, Brian Smedley, said the proposed change would be contested by unions in front of the Fair Work Commission in March next year.

“At this stage we have had discussions with unions about our proposal and there is no agreement that has been reached.

“At the end of the day, this is really about what is fair and a relevant safety net for terms and conditions for the wine industry employment,” Mr Smedley said.

There are concerns that a change in the wine award would affect workers in grape growing, manufacturing, retail and hospitality sectors, who are often subject to sudden changes in their labour requirements.

Mr Smedley said the current award is out of line with other agricultural sectors, including the horticulture award where employers are not required to guarantee minimum working hours for casual employees, such as table grape pickers.

Wine grape growers said they were exposed to financial risk during peak periods around harvest.

They claimed they often have to send home large numbers of casual vineyard workers after one to two hours of work due to weather, yet were still obliged to pay the remainder of the minimum engagement.

South Australia produces 47 per cent of the nation’s total wine crush, with the total workface increasing tenfold during peak periods over harvest.

Mr Smedley said the wine industry was trying to reduce challenges hampering the competitiveness of Australian wine and needed more flexibility in the workplace.

National workplace relations laws need to change, SAWIA chief

A submission from the wine industry to the Productivity Commission’s national workplace relations review has highlighted the need for comprehensive reforms to the federal workplace relations laws.

The detailed submission prepared by the South Australian Wine Industry Association (SAWIA) in collaboration with the Winemakers’ Federation of Australia (WFA) contains 22 recommendations.

“We have identified a range of changes that need to be made to get flexibility and balance back into the system, lift productivity and cut red-tape and compliance costs, particularly for many of the small businesses in the wine industry,” Brian Smedley, SAWIA chief executive, said. “For example awards are still complex, inflexible and overly prescriptive despite numerous reforms to the award system over the last three decades.”

Smedley said a new approach is required and the award system should be largely replaced by clear legislated minimum standards.

“We need legislative changes that support employers implementing smarter, more efficient and productive work practices,” he said. “Enterprise agreements should reflect core employment conditions and not be used as a vehicle to ban the use of contractors, casual employees or labour hire staff – a supplementary workforce is an essential part of the modern workplace.”

Employers and employees should be allowed to agree to individualised working arrangements that are stable, meaningful and mutually beneficial, according to Smedley.

“Therefore the Individual Flexibility Agreements (IFAs) must be given wider scope to work as intended.”

Smedley said the wine industry also needs a system that caters for seasonal fluctuations.

“For example, vintage is dictated by weather conditions and as such days and nights of the week have no real meaning if grapes need to be picked in the coolness of the evening or pressed on a weekend then employees are needed for these tasks,” he explained. “For cellar doors, weekends and public holidays are the peak periods for tourists. Yet, the award system penalises the industry for weekend and public holiday work, requiring penalty rates of up to 250 per cent per hour.”

Smedley said other recommendations made in the submission were aimed at simplifying the making of enterprise agreements and restoring the balance in relation to employee protections.

“For example, we need the practice of paying go-away money where an employee has been dismissed for poor performance or serious misconduct stopped – it has become normalised even when claims of unfair dismissal lack merit,” he said.

To view the full submission, go to www.pc.gov.au and follow links.

Restart Wage Subsidy may apply when hiring mature aged workers

Employers that provide jobs to people 50 years of age or older, could be eligible for financial assistance that can be used on anything they need to expand their business – from reskilling staff to investing in new equipment.

The Restart Wage Subsidy provides an incentive of up to $10,000 (GST inclusive) to employers if they hire and retain a full-time mature age job seeker aged 50 years or older who has been unemployed and receiving income support for 6 months or more.

The Restart Wage Subsidy can be claimed on a pro rata basis if hiring mature age workers part-time, for at least 15 hours a week.

Visit the Experience Pays website  for more information about Restart and the benefits of employing mature age workers.

Superannuation guarantee delayed until 2021

Legislation was passed in September 2014 that will slow down the increase in the rate of Superannuation Guarantee from 9.5% to 12% by three years. The first incremental increase from 9.5% to 10% was scheduled to take place on 1 July 2018, but this has now been delayed until 1 July 2021. This means that the full 12% will not apply until 1 July 2025 (previously 1 July 2022).

The following table shows the old and new Superannuation Guarantee rates:

superannuation_table

A new Return to Work scheme for South Australia

From 1 July 2015 the existing WorkCover scheme will be replaced with the new Return to Work scheme.

The Return to Work scheme will save South Australian employers at least $180 million every year.

The focus of the Return to Work scheme is early intervention. This means if one of your employees has a work injury and requires time off work you will receive early, intensive and tailored support to assist their return to work.

The legislation also provides a number of improvements to the current WorkCover scheme for injured workers, including:

  • the restoration of payments during disputes;
  • improved strategies to equip workers who may not be in a position to return to their pre-injury
  • employment to better compete for work in the open labour market;
  • targeted return-to-work services as opposed to a one-size-fits-all approach;
  • the creation of an employment facilitation fund to assist workers to develop skills, knowledge,
  • capacity and capabilities that will enable them to transition to other work; and
  • a dispute resolution process which will increase the speed at which disputes are heard and determined.

In 2015 WorkCoverSA will become ReturnToWorkSA and will be responsible for implementing and administering the Return to Work scheme.

More information regarding the changes will be provided to businesses early next year.

The legislation as passed is available here.

Launch of Safe Work Australia Month

On the 1st of October the Minister for Employment and Safety Ambassador Senator Eric Abetz officially launched Safe Work Australia Month and its feature event, the new Australian Strategy Work Health and Safety Virtual Seminar Series.

The Virtual Seminar Series, to be held through Safe Work Australia Month in October, is a free online programme that will showcase the latest thinking, developments and research in work health and safety.

The series will include presentations from national and overseas work health and safety experts, discussions with business leaders and live online panels.

In officially launching Safe Work Australia Month, Senator Abetz said the Virtual Seminar Series was a terrific way to get workers, businesses and the community to learn more about work health and safety.

Senator Abetz’s video message can be accessed here:http://www.safeworkaustralia.gov.au/sites/swa/media-events/safety-month/pages/swam

“Safe Work Australia Month and the Virtual Seminar Series provide individuals, businesses and the general community with a platform to start a conversation about work health and safety,” Senator Abetz said.

“Raising awareness of work health and safety will reduce injuries, increase productivity and may save a life.

“Sadly, 191 people lost their lives in a work-related incident in 2013.

“While this is the lowest number on record, it’s still 191 too many.

“It’s important for all businesses – no matter their size – to effectively manage the health and safety of their workers.

“That’s why the Australian Government is working towards ensuring straightforward and easy-to-understand work health and safety guidance so that everyone can understand what they need to do.

“So, this October, I encourage everyone to make work health and safety a priority, take part in the Virtual Seminar Series and become a safety leader by getting involved in Safe Work Australia Month.”

More information about the full range of Safe Work Australia Month events being held during October is available by downloading the free Safe Work Australia Month app.

For further information about how you can get involved in Safe Work Australia Month, visit www.swa.gov.au

When management is a bully

The Fair Work Act introduced new anti-bullying provisions at the start of the year. Here’s a reminder of what does and doesn’t constitute an offence by co-workers or, in particular, management.

Source: HRMonline