“Making sure our laws protect and promote equality for our diverse communities is a key priority for the Palaszczuk government.”
– The Honourable Shannon Fentiman, former Queensland Attorney-General, May 2021.
Background
In May 2021, Queensland’s Attorney-General requested the Queensland Human Rights Commission (QHRC) conduct a review of the Anti-Discrimination Act 1991 (Qld) (AD Act) to ensure it continues to provide suitable protection against discrimination and sexual harassment.
After a review process which attracted over 125 written submissions from various stakeholders, the QHRC is due to present its final report with recommendations for legislative reform to the Attorney-General on 30 July 2022.
In this insight we explore the amendments the Queensland Government may make to the AD Act and what these changes will mean for employers operating in Queensland.
We also identify proactive steps for employers to take ahead of the changes being implemented.
What changes are likely to be made?
While a Bill proposing amendments to the AD Act is yet to be drafted, having regard to the terms of reference of the review and submissions already made, we expect the Queensland Government will propose the following key changes.
The proposed changes will likely result in a more simplistic AD Act for complainants, which may result in a higher proportion of successful discrimination complaints. Employers will need to pay close attention to the amendments as they will also act as a signal to what may arise federally.
One discrimination test
The Queensland Government is likely to redefine direct and indirect discrimination in the AD Act and clarify that they are not mutually exclusive and a person may experience conduct amounting to both. For example, in Taniela v Australian Christian College Moreton Ltd [2020] QCAT 249, the complainant, due to his race, was unable to cut his hair. The Tribunal found the respondent indirectly discriminated against the complainant by imposing a term in its uniform policy prohibiting male students from having long hair and directly discriminated by proposing to expel the student for failing to comply with the policy.
The distinction between direct and indirect discrimination has resulted in unsuccessful complaints of discrimination because the incorrect type of discrimination was pleaded. This occurred in Perry v State of Queensland & Ors [2006] QADT 46 (Perry), where the Tribunal member identified that indirect discrimination had occurred but ultimately found no discrimination was made out because the complainant had alleged direct discrimination.
The existing tests also do not contemplate that a person may experience a cumulative disadvantage where they are subject to discrimination on the basis of more than one protected attribute.
The Government may look to discard the two tests in favour of a single test for establishing discrimination, such as by defining discrimination as “any act or omission, including a policy, law, rule, practice, condition or situation, which directly or indirectly disadvantages a person or group with a protected attribute.”
End of the ‘comparator test’
In streamlining the definition of discrimination, the Queensland Government may abandon the “comparator test” that features in anti-discrimination legislation in most Australian jurisdictions in favour of an ‘unfavourable treatment’ test.
The current test requires a comparison between the treatment of the person who has a protected attribute and the treatment that is, or would be, afforded to a person in the same or similar circumstances without the attribute (the ‘comparator’). The comparator test can be problematic to the extent it requires Courts and Tribunals to hypothesise how the respondent may have treated a person without the attribute.
The test for indirect discrimination also involves a comparative test in that there must be an unreasonable requirement imposed that the complainant cannot comply with and which a higher proportion of people without the attribute can comply. This test poses significant evidentiary hurdles for complainants because they are required to identify a pool of people without the same attribute who can comply.
It is likely Queensland will follow the lead of the Australian Capital Territory and Victoria in departing from these tests, with both jurisdictions now asking whether the complainant was treated unfavourably because of a prohibited reason/s or whether a term or condition has the effect of unreasonably disadvantaging a person with a protected attribute.
Positive duty to accommodate
Employers currently do not need to make reasonable accommodations for a person with an impairment if doing so would impose an unjustifiable hardship on the employer.
The Queensland government may propose to remove or redefine the unjustifiable hardship exemption, with the potential for employers to be subject to an express positive obligation to make reasonable adjustments for people with protected attributes. Currently, the obligation to provide special services or facilities for a person with an impairment is not easily enforceable, particularly because of the breadth of what may amount to “unjustifiable hardship” on the employer. This is likely to change with the only exemption available being refined to specific matters such as employer affordability.
The positive duty may be extended to other protected attributes, such as in Victoria, where employers are obliged to make reasonable adjustments for people with a disability and workers who are parents or carers, with no defence of unjustifiable hardship available.
Additional protected attributes
The terms of reference question whether there is a need to extend protection to a wider range of attributes to better reflect the diversity of modern society. The attributes earmarked for potential protection include a person’s spent criminal convictions, irrelevant criminal record, expunged homosexual conviction, irrelevant medical record, immigration status, employment activity and physical features.
Protecting the proposed attributes would require employers to pay particular attention to recruitment policies and procedures, to ensure a person’s criminal history, medical records, weight or immigration status is only collected where relevant to the inherent requirements of the position. If information is irrelevant, it should not be collected and, if collected, employers should be cautious not to rely on it in making decisions in relation to the person.
Including employment activity as a protected attribute would mean public sector employees would also have protections akin to the workplace rights protection under the FW Act and employers would need to ensure they do not discriminate against employees for making a reasonable request or raising a concern about their employment entitlements.
Reverse onus of proof
The QHRC’s review also floats the idea of reversing the onus of proof in a discrimination claim to involve a rebuttable presumption, requiring the complainant to simply establish the discriminatory action was taken and they have a protected attribute. A Court or Tribunal would then assume the employer took the action because of the person’s protected attribute, unless the employer can prove otherwise.
While this would provide some consistency for employers with the process under the general protections laws in the FW Act, it would be a novel approach for anti-discrimination legislation in an Australian jurisdiction and may pose a significant burden on employers when defending claims.
Bolstering protections from sexual harassment
The Queensland Government is likely to give legislative effect to recommendation 17 from the Respect@Work report by introducing a positive duty on employers to “take reasonable and proportionate measures to eliminate sex discrimination, sexual discrimination, sexual harassment and victimisation, as far as possible”.
This duty would complement an employer’s existing duties under the Work Health and Safety Act 2011 (Qld) to eliminate or manage hazards and risks to a worker’s health and safety (including psychological hazards).
It is likely the Queensland Government will also amend the meaning of sexual harassment to capture indirect sexual harassment. To constitute sexual harassment, conduct is currently required to be directed towards a particular person or have some connection with them and be carried out in circumstances where it was reasonable to anticipate the person would be humiliated, offended or intimidated. This does not protect in examples like Perry where posters sexualising women were displayed in the workplace but, in lieu of sufficient sexual harassment protections, the complainant was unsuccessful in her claim as the posters did not constitute direct discrimination. The Government may resolve this by taking inspiration from the ACT’s provision that sexual harassment may occur “to, or in the presence of” the complainant.
Even without the imposition of a positive duty, it is important that employers take deliberate steps to prevent sexual harassment in the workplace to avoid civil liability. The significantly larger award of damages for sexual harassment and sex discrimination in Golding v Sippel and The Laundry Chute Pty Ltd [2021] QIRC 074 makes clear the increasing gravity with which sexual harassment in the workplace is treated by Courts and Tribunals and emphasises the importance of employers ensuring the workplace is free from sexual harassment and sex discrimination.
What does this mean for employers?
The Queensland Government is likely to introduce more stringent requirements for employers to be proactive in eliminating discrimination and sexual harassment in the workplace.
Employers will need to be aware of their obligations with respect to discrimination and sexual harassment to safely operate within a legislative framework that has a lower threshold when establishing that discrimination has occurred.
Whilst there is yet to be a draft Bill indicating the Government’s proposed changes, we recommend employers start proactively considering the steps they can take towards compliance with any legislative requirements likely to be introduced. This includes:
- Conducting a risk assessment/analysis of the workplace to identify where discrimination and sexual harassment could occur physically and online and develop mitigation strategies to manage those risks.
- Delivering refresher training to employees to identify discrimination and sexual harassment and what to do about it including active bystander intervention.
- Conduct a thorough review of all policies and procedures to the extent they relate to discrimination and sexual harassment and consider how they may need to be amended to comply with the foreshadowed legislative changes.
- Review recruitment processes to ensure irrelevant information is not collected and merit-based decisions are being made.
The team at Kingston Reid are here to assist if you need support with reviewing policies and procedures, delivering training to staff and identifying the risks within your workplace.