New anti-discrimination laws a big trap for employers and managers

Employers struggling to understand the Rudd Government’s new Fair Work industrial relations regime have been warned to pay close attention to beefed up anti-discrimination regulations contained in the laws, as unions and the Fair Work Ombudsman signal this will be closely watched.

The Australian Council of Trade Unions is already offering a discrimination course for its union organisers, that promises to help them “learn how to use discrimination and harassment in the workplace as an organising opportunity”.

The Fair Work Ombudsman says it is expecting to handle 10 discrimination complaints a day under the new laws and is in the process of training 300 investigators who will be able to carry out discrimination investigations in workplaces.

Under the new Fair Work Act, employees are prohibited from discriminating against employees on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

But Peter Vitale of CCI Lawyers says there are two twists employers need to be aware of.

Firstly, the onus of proof is now on the employer. If a worker makes a claim against you, it will be up to you to prove that you did not offend.

Secondly, the new laws also prohibit employers from taking “adverse action” against an employee, including dismissal, injuring an employee, discriminating against an employee and “altering the position” of an employee to their detriment.

Vitale says the inclusion of the anti-discrimination laws in the Fair Work Act simply hasn’t registered with many employers. But given the strong stance being taken by unions and the Ombudsman, it’s time to wake up.

“It seems that the direction of the Fair Work Ombudsman is not to limit themselves to wages underpayment issues, they are looking to get involved in a whole range of areas under the new Act,” Vitale says.

“You add the reverse onus of proof to that and it’s going to make for some very difficult cases for employers.”

He says employers and managers particularly need to be aware of their obligations around discrimination.

As a starting point, it is essential that companies have strong and well-articulated discrimination policies that all staff members understand.

But perhaps even more importantly, managers need to be acutely aware of the “adverse actions” provisions when making any staffing decision.

Common practices such as promoting a particularly staff member or awarding a particular worker a pay rise or bonus could be considered an “adverse action” in the eyes of another staff member, who could then launch action.

“They’ve clearly got a pretty wide application and employers need to very careful,” Vitale says.

“Managers who make decision about which employees get promoted or get bonuses or get moved sideways – all those decisions that aren’t necessarily as serious as dismissal – need to be very aware that this is potentially going to be a red hot area for litigation.”

“Those kinds of decision need to be much more considered and mangers need to be able to demonstrate that those decisions are not discriminatory.”

Once again, that highlights the need for good employee record keeping, particularly around performance reviews and analysis of employees’ skill sets.

Of course, that will cost employers time and money and Vitale worries it could put the brakes on managers.

“It can potentially have a really fundamental effect on management decision making.”

If you want to learn more about the new IR changes, then don’t miss our free webinar called The Fair Work Act: Implications for your business on the new workplace relations changes on 9 July at 2pm .Our editor James Thomson will be joined by workplace lawyer Kathryn Dent from Gadens Lawyers to discuss the changes and answer your questions. Don’t miss it.