Discrimination occurs when a person is treated less favourably than another person by reason of their background or certain personnel characteristics referred to as “attributes” which may include race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or national extraction or social origin.

Unless it is specifically linked with one of the discriminatory attributes mentioned above, sexual harassment may not constitute unlawful discrimination under the Fair Work Act.

In cases of sexual harassment, it is the provisions of the Sex Discrimination Act 1984 with which employers need to comply. Section 28A of the Act defines sexual harassment as when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature such as unwelcome touching, hugging, cornering or kissing. This occurs in circumstances where it is possible that the person harassed would be offended, humiliated or intimidated. Sexual harassment can be subtle and implicit rather than explicit, and can be verbal as well as physical.

Under section 106 of the Act, employers may be vicariously liable if an employee commits sexual harassment and the employer did not take all reasonable steps to prevent the employee from such acts.

The Australian Human Rights Commission (AHRC), which can investigate and resolve complaints of both discrimination and sexual harassment, advises all employers to have a sexual harassment policy in place which:

• Provides training for employees on how to identify and respond to sexual harassment;
• implements an internal complaints-handling procedure;
• takes appropriate remedial action if and when a sexual harassment complaint is made.

If you’re a business owner and have no policy on these issues, or wish to check your current policy is up to date and fit for use, consulting a lawyer with experience in this field is highly advisable.

Peters Bosel Lawyers can assist in all elements of policy development, training, prevention strategies, investigation and representation in the event a formal complaint is lodged.

Discrimination can occur at any point in the various stages of the employment relationship including:

• during recruitment and selection of staff;
• when offering terms, conditions and benefits;
• who is selected for training and development opportunities;
• who gets transferred or promoted; or
• during processes for selection for retrenchment or dismissal.

Employees need to understand that a one-off incident can constitute discrimination.

In addition to the Anti-Discrimination Act 1991 (Queensland) there is a range of Federal legislation prohibiting discrimination that employers need to be aware of, including:

• Age Discrimination Act 2004
• Australian Human Rights Commission Act 1986
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984

The Fair Work Act 2009 also prohibits “adverse action” based on a discriminatory reason.  Adverse action comprises:

• dismissing an employee;
• injuring an employee in their employment;
• altering an employee’s position to their detriment;
• discriminating between one employee and other employees;
• refusing to employ a prospective employee; or
• discriminating against a prospective employee on the terms and conditions in the offer of employment.

It’s unlawful for an employer to discriminate against an employee through any of the adverse actions above. Under the Fair Work Act 2009, penalties for adverse action on discriminatory grounds attracts a maximum penalty of $63,000 for corporations.

The Federal Court or Federal Circuit Court of Australia may also make orders for injunctions, reinstatement and/or compensation if it determines the unlawful discrimination protections of the Fair Work Act have been contravened.

Sexual harassment is prohibited under the Anti-Discrimination Act 1991 (Queensland) and also under various states (e.g. Sex Discrimination Act 1984 (Cth)).

These laws define sexual harassment as when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature such as unwelcome touching, hugging, cornering or kissing. This occurs in circumstances where it is possible that the person harassed would be offended, humiliated or intimidated. Sexual harassment can be subtle and implicit rather than explicit, and can be verbal as well as physical.

Under this legislation, employers may be vicariously liable if an employee commits sexual harassment and the employer did not take all reasonable steps to prevent the employee from such acts.

The Queensland Human Rights Commission (QHRC), and various other authorities (eg Australian Human Rights Commission) which can investigate and resolve complaints of both discrimination and sexual harassment, advises all employers to have a sexual harassment policy in place which:

• Provides training for employees on how to identify and respond to sexual harassment;
• implements an internal complaints handling procedure;
• takes appropriate remedial action if and when a sexual harassment complaint is made.

If you’re a business owner and have no policy on these issues, or wish to check your current policy is up to date and fit for use, consulting a lawyer with experience in this field is highly advisable.

Peters Bosel Lawyerscan assist in all elements of policy development, training, prevention strategies, investigation and representation to provide the best possible protection, and access to statutory defences, in the event a formal complaint is lodged.