Combating Discrimination in the Workplace Complies with Legal Profession Regulation 176 Special MCLE Requirement Presented by Dr Monica Hayes Solicitor and Senior Lecturer, The College of Law

Legislation Combating Discrimination  Discrimination law both federal and state;  Legislation promoting structural change and  Industrial legislation

Commonwealth Anti-Discrimination Legislation  Age Discrimination Act 2004  Australian Human Rights Commission Act 1986  Disability Discrimination Act 1992  Racial Discrimination Act 1975  Sex Discrimination Act 1984

Anti-Discrimination Act 1977 (NSW)  Racial discrimination - Part 2  Sexual discrimination – Part 3  Transgender discrimination - Part 3A  Marital status – Part 4  Disability – Part 4A

Anti-Discrimination Act 1977 (NSW) cont.  Responsibility as a carer – Part 4B  Homosexuality – Part 4C  Compulsory retirement on the grounds of age – Part 4E  Age Discrimination – Part 4G

Remedies STATE  Anti-Discrimination Board  Administrative Decisions Tribunal FEDERAL  Australian Human Rights Commission  Federal Court or Federal Magistrates’ Court

New Developments DISABILITY DISCRIMINATION AND OTHER HUMAN RIGHTS LEGISLATION AMENDMENT ACT 2009 AMENDMENTS TO SEX DISCRIMINATION ACT 2011 OTHER DEVELOPMENTS  Review of Human Rights Protection  Proposed Consolidation of Commonwealth Anti-Discrimination Laws

Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 Duty to make reasonable adjustments for people with disabilities; Extension of inherent requirements defence Prohibition against discrimination against carers, assistants and assistant animals Simplifying requirements for demonstrating indirect discrimination

Amendments to the Sex Discrimination Act Equal protection for men and women Extending protection from direct discrimination on the grounds of family responsibilities Establishing breast feeding as a separate ground of sex discrimination Broadening the test of sexual harassment and expanding coverage

Workplace Gender Equality Act 2012 Amendment of objects to include pay equity and carers’ responsibility Simplify reporting and remove requirement for workplace programs Employers report against gender equality indicators Make compliance stronger and fairer

Elements to be Made out in a Sexual Harassment Complaint there is a sexual advance, a request for a sexual favour or conduct of a sexual nature; the advance, request or conduct is unwelcome; and having regard to the circumstances, a reasonable person would have anticipated the possibility that the person would be offended, humiliated or intimidated.

Vicarious Liability of Employers Section 53(1) of the Anti-Discrimination Act provides that: An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication to do the act.

Harassing Behaviour Unwelcome touching, hugging or kissing Staring or leering Unwanted invitations or requests for sex Suggestive comments or jokes Intrusive questions about a person’s private life Sexually explicit posters or pictures Sexually explicit s or SMS Insults or taunts of a sexual nature Accessing sexually explicit internet sites

Prevention of Harassment  Having a policy that is easily understood strongly supported by management  Having a workable and fair complaints procedure  Training for all employees in implementation of the policy