This year saw three very public pieces of evidence demonstrating that community expectations regarding discrimination and harassment in Western Australian workplaces have changed.
What were the pieces of evidence?
- The introduction of the substantive provisions of the Work Health and Safety Act 2020 (WA) (WHS Act) on 31 March 2022;
- The publication of the Community Development and Justice Standing Committee’s report “Enough is Enough” (the FIFO Report) following the inquiry into sexual harassment against women in the FIFO mining industry in June 2022; and
- The publication of the WA Law Reform Commission’s (WALRC) final report (LRC Report) following a review of the Equal Opportunity Act 1984 (WA) (EO Act) in August 2022.
What does the LRC Report say?
The LRC Report was published after more than three years of consultation with a wide range of stakeholders.
Submissions were made by industry groups and trade unions, highlighting the impact these potential reforms may have for employment.
The LRC Report referenced the Equal Opportunity Commission Annual Report 2020-2021 and its data.
For example, in the 2020-21 financial year, the Commission received 564 complaints of discrimination. Of these complaints, the most common was discrimination on the ground of impairment (23.4%), race (14.1%), and sex and sexual harassment (11.1%). Discrimination in employment was the biggest area of complaint received (45.8%), being over double the next largest area of complaint.
The LRC Report recommended significant changes which will mean Western Australia will align with equal opportunity legislation in other Australian jurisdictions.
What will the government do?
Attorney-General Mr John Quigley stated that the McGowan Labour Government “broadly accepted the recommendations” contained in the LRC Report.
On that basis, it seems it is full steam ahead with the Government now drafting a new EO Act.
We expect the new EO Act will incorporate the majority of the WALRC recommendations
Will there be new grounds for discrimination?
While existing grounds of complaint (or protected attributes) will remain unchanged in the EO Act, the reforms may include additional 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 housing.
- Carer responsibilities will be separated from the broader family status protected attribute that exists under the EO Act. It is recommended that carer responsibility be defined as having responsibility for the care of another person, whether that person is dependant or not (other than in the course of paid employment).
- Employment status will be defined so it includes 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 be a stand-alone ground separate from the definition of race. The WALRC also indicated it should be compatible with the Migration Act 1958 (Cth).
- Industrial, trade 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 protections to areas of public life outside of employment.
- Irrelevant criminal record carries the stigma associated with criminal offending and may hinder a person’s employment opportunities. It will feature an exemption for employers to refuse to offer employment if that criminal record provides evidence the person does not have the attributes that will enable them to fulfill the inherent requirements of the role.
- Irrelevant medical record will include a person’s worker’s compensation history.
- Lawful sexual activity will be similar to sexual orientation but would cover other areas, such as people engaged in lawful sex work.
- Personal association will provide coverage to a person associated (as relatives or otherwise) with another person who is identified by reference to another protected attribute (e.g., race).
- Physical feature would include a person’s height, shape, facial features, weight, natural hair colour, alopecia, hirsutism and birthmarks (but exclude voluntarily obtained piercings, tattoos and body modifications).
- Political conviction will be separated from the broader ‘political and religious conviction’ protected attribute that exists under the EO Act. It is likely to extend to relatives or associates of the person who is protected and to all areas of public life under protection.
- Sex characteristics will provide protections for a person’s variations in sex characteristics that do not align with male or female characteristics.
- Subjection to domestic or family violence will be included and may be expanded to include all victims of crime or violence.
The WALRC also recommends removing the disadvantage test under the existing EO Act and introducing a positive duty on employers to prevent discrimination.
Will the disadvantage test be dropped?
Currently the EO Act defines sexual harassment as unwelcome sexual advance which leads to the complainant being disadvantaged.
The LRC Report and the FIFO Report both recommended removing the disadvantage test to be consistent with other jurisdictions.
The recommended approach is to define sexual harassment consistently 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 favours, to the person harassed; or
- engages in other unwelcome conduct of a sexual nature in relation to the person harassed,
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
The shift of focus to the harasser’s conduct, instead of the disadvantage suffered by the harassed person, aligns with contemporary community expectations that it is the harasser who should be called to account.
What is the positive duty and will it be in the new legislation?
The WALRC recommends imposing a positive duty on employers to prevent discrimination, harassment, victimisation and vilification at work (see Recommendation 121 of the LRC Report).
This would require ‘reasonable and proportionate measures’ (see Recommendation 122 of the LRC Report), takes into account the size of the duty holder’s business, the nature and circumstances of the business, available resources, operational priorities and the practicability and cost of the measures (see Recommendation 123 of the LRC Report).
The WALRC said introducing a positive duty would encourage duty holders to proactively address discriminatory or harassing conduct while aligning employer’s systems and procedures with the revised objects of the EO Act.
Although the WALRC recommends the imposition of a positive duty, it is not yet clear whether this will make it into the new legislation currently being drafted by the Government.
The WHS Act already imposes a positive duty to reduce psychosocial risks arising from discrimination and harassment in the workplace (and associated accommodation, for example, in the FIFO mining industry). However, the EO Act would extend beyond the workplace and include protected areas of public life.
Change is on its way for Western Australia’s discrimination and harassment laws.
New protected attributes will require updated policies and training for employees so they can understand and adjust to the revised expectations around appropriate workplace behaviour.
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 that introduced in Victoria, employers will need to:
- make significant investments in training and education;
- audit and update policies, programmes, practices and procedures;
- have a prevention plan;
- build organisational capability by developing the leadership skills of managers and supervisors; and
- embed the psychosocial risks of discrimination, sexual harassment and victimisation into WHS risk management processes.
Changes to the no-disadvantage test may also increase the risk that an employee will file a claim in the Commission.
Busy times ahead for WA employers.