Creating a positive duty to prevent discrimination in Queensland: the impact on employers

While the Anti-Discrimination Act 1991 (Qld) (ADA) plays an important role in preventing discrimination and promoting social inclusion in Queensland, a lot has changed in 30 years. In May 2021, the Attorney-General asked the Queensland Human Rights Commission (QHRC) to undertake a review of the ADA; the final report has been delivered to the Attorney-General and will be published after tabling in State Parliament.

A main focus of the review was the implementation of a positive duty on employers to address and prevent discrimination and other objectionable conduct prohibited by the ADA, but is this anything new? The answer is “perhaps”. A duty already exists under model workplace health and safety laws to provide a safe and healthy workplace. While implementing a positive duty under the ADA might mean a more accessible, informal process for complainants to challenge the effectiveness of an employee’s actions, it also undoubtedly creates a more complex web of intersecting obligations for employers to navigate. How employers will be impacted will depends on the size, nature, circumstances, resources and priorities of the business, but regardless, all employers should take the time now to re-examine their frameworks for the assessment and management of discrimination in the workplace.

A positive duty to prevent discrimination: the Victorian experience

In Victoria a positive duty was introduced to the Equal Opportunity Act 2010 (Vic) (EOA) in 2020, setting out six minimum standards for compliance:

• knowledge;
• prevention plan;
• organisational capability;
• risk management;
• reporting and response; and
• monitoring and evaluation.

The implementation of a positive duty to the EOA has meant that employers must be more proactive in preventing discrimination by focusing on ways to ensure a healthy workplace culture, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries do not occur. Interestingly, in 2020-21, the Victorian Equal Opportunity and Human Rights Commission received 1303 complaints, compared to the 1490 complaints received by the QHRC. Given the difference in population, the implementation of the positive duty under the EOA may just be having the intended impact in Victoria and reducing complaints received, and by implication, the incidence of discrimination in the workplace. While we don’t yet know if the ADA will implement similar guidelines or fall in line with Victoria’s approach, we think the implementation of a positive duty is the likely outcome, so Victoria’s experience is a useful guide.

Ensuring you comply with a positive duty to prevent discrimination (or are you already?)

When a positive duty is implemented, employers will need to make sure that they:

• take steps that are reasonable and proportionate to the size of their business as well as the practicality and cost of such steps; and
• maintain evidence to demonstrate the steps taken.

It is quite likely that employers already have practices that would meet a potential positive duty requirement under the ADA, given they already have a similar duty under model workplace health and safety laws to ensure workers are not exposed to health and safety risks, including the risk of sexual harassment, so far as is reasonably practicable. A change to the ADA would however impose a higher regulatory burden as they must be able to demonstrate compliance with both frameworks.

Being proactive and meeting the positive duty burden may look different for employers depending on the size and nature of their business. The Victorian Equal Opportunity and Human Rights Commission provided an example of a large employer meeting its positive duty. In this scenario, the employer conducted a confidential staff survey that revealed women were uncomfortable with the level of sexual banter in the office but that their grievances were not treated seriously or confidentially. As a result, the employer agreed to review policies and provide training for all staff on their rights and responsibilities. By contrast, a small employer might have a similar requirement to conduct a survey of its staff, but based on the results the training requirements may be different. It will be difficult to know where the line is and what will be considered sufficient for each employer.

A third factor: Respect@Work

Sexual harassment and discrimination in the workplace remain in sharp focus at the Federal level as well. The Federal Government has pledged to invest more than $35 million over four years to implement all recommendations from the 2020 Respect@Work Report. In terms of the legislative approach the Sexual Discrimination and Fair Work (Respect at Work) Amendment Act 2021 which embodies the recommendations, essentially confirms and clarifies existing law. In particular, the Act:

• creates a new object clause in the Sexual Discrimination Act 1984 (SD Act) to make it clear that the Act aims to achieve, so far as practicable, equality of opportunity between men and women;
• inserts a new provision making it clear (if it was not already so), in line with existing case law, that it is unlawful to harass a person on the ground of their sex;
• simplifies protections from workplace sexual harassment to align with the terms used in the model Work Health and Safety law;
• clarifies that the scope of the SD Act extends to members of parliament, their staff and judges and removes the previous exemption of state public servants;
• ensures that a person who causes, instructs, induces, aids or permits someone else to engage in sexual harassment or sex-based harassment can be found to have engaged in unlawful conduct;
• clarifies that victimising conduct can form the basis of a civil action for unlawful discrimination in addition to a criminal complaint under the SD Act;
• confirms (if anyone was in doubt) that sexual harassment can be a valid reason for dismissal; and
• confirms that the FWC can make an order to stop sexual harassment. In the first application of this type, on 24 December 2021 the FWC dismissed an application for a stop sexual harassment order. In this case, the Applicant filed an application in the FWC for an order that two individuals employed by a neighbouring business in the same warehouse complex stop bullying and sexually harassing the Applicant, known as THDL. The FWC dismissed the application on the basis that TDHL no longer operated a business in the same warehouse complex as the two individuals. Therefore, there was no risk that THDL may be subject to bullying and/or harassment at work as there was “no likelihood that the parties will cross paths while at work.” While this case was dismissed, it confirms that there needs to be an ongoing risk of bullying or sexual harassment to obtain a stop order from FWC.

What does this then mean for the ADA Review? Changes implemented (if any) will likely mean a broadening of the reach of the discrimination laws with a consequential need for employers to:

• understand the impact of any increased scope; and
• look at how to educate, entrench and enforce that in the workplace.