As an employer from an OH&S perspective, it is a requirement that they must provide a safe and healthy workplace for workers and contractors. This must include providing and maintaining a safe work environment along with safe plant & equipment and safety-at-work systems i.e. making sure workers have adequate information, instruction, training and supervision to work in a safe and healthy manner.
It is also a requirement that employers adequately monitor workers' health and keep information and records relevant to workers' health and safety. Also important is that organistations:
Employ or engage people with the necessary qualifications or expertise to advise you on health and safety issues affecting workers;
Consult with employees on matters that may directly affect their health, safety or welfare. Where the employees are represented by a health and safety representative (HSR), the HSR must also be involved in the consultation;
Nominate a senior management representative to effectively deal with workers and their health and safety representatives in resolving health and safety issues at the workplace;
Provide workers with information in the appropriate languages about workplace health and safety arrangements, including the names of those to whom the workers can make an inquiry or complaint.
Not only is an organisation liable for safety breaches that may occur (including bullying) but all employees are required to also take reasonable steps to prevent injuries occurring to others in workplace. It is conceivable that more than one person may contribute to a breach of safety and not just the employer may be liable.
Similarly, an organisation is liable for unlawful workplace behaviours of its employees and it is conceivable that a colleague may also be held to account if they were found to have contributed to the behavior occurring. For example: an individual who sexually harasses or discriminates against another person in the workplace will be held responsible, and therefore legally liable, for their behaviour. Employers can also be held legally responsible for acts of discrimination or sexual harassment by their employees or agents that occur in the workplace or in connection with a person’s employment. This is known as ‘vicarious liability’.
Employers can limit their liability by taking reasonable precautions to prevent discrimination and sexual harassment from occurring, as well as putting in place measures to respond to issues that do arise.
What are Reasonable Precautions?
The definition of ‘reasonable precautions’ will vary from one workplace to the next, depending on the size, resources at its disposal and the nature or size of an organisation. Its’ capacity to implement effective prevention programs is an important part of what may be considered reasonable.
They include (as a minimum):
Establishing equal opportunity and anti-discrimination policies and systems, and ensuring all managers and staff are aware of their rights and responsibilities;
Reviewing the preventative policies and processes every two years against current legislation and recent case law decisions;
Developing training and education programs to help managers and staff identify, prevent and respond to inappropriate workplace behaviours such as discrimination and sexual harassment; Training should be conducted every two years and upon induction;
Establishing an internal complaints procedure and system that can resolve complaints of discrimination or harassment promptly, fairly and effectively. Best practice includes external 3rd party intervention for complaint triage, mediation and or investigation;
Including information upon induction about workplace policies and complaints procedures to position the value that support inclusion and respect;
Measuring the incidence of inappropriate workplace behaviours;
The strong, active and authentic support from the organisation’s senior management who’s responsibility it is to align employees with the corporate values;
Survey and regularly monitor the workplace environment and culture. Surveys can make issues visible and therefore provide valuable information that can be used to update workplace equal opportunity policies and systems.
Positive Duty of Care
The Equal Opportunity Act 2010 (VIC) clearly sets out the positive duty to eliminate discrimination, sexual harassment and victimisation.
It is important organisations know about the positive duty and understand how it works.
The positive duty applies to everyone who already has responsibilities under the Equal Opportunity Act. It applies to employers and people who provide accommodation, education, and goods and services. It also applies to clubs and sporting organisations, to government, and to people in business and the community sector.
The Equal Opportunity Act 2010 (VIC) introduces a positive duty requiring all organisations covered by the law to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation.
Instead of allowing organisations to react to complaints of discrimination when they happen, the Act requires them to be proactive about discrimination and take steps to prevent discriminatory practices.
This positive duty is about addressing the systemic causes of discrimination, sexual harassment and victimisation.
Just like occupational health and safety laws require employers to take appropriate steps to improve their systems, policies and practices so injuries don’t occur, the Equal Opportunity Act 2010 (VIC) gives organisations an obligation to take appropriate steps to prevent discrimination, sexual harassment and victimisation from occurring.
The positive duty in the Equal Opportunity Act 2010 spells out a principle that was always behind the aims of our equal opportunity laws.
What are ‘reasonable and proportionate measures’?
The law clearly indicates that the reasonable and proportionate measures needed to satisfy the positive duty will depend on the size and resources of each organisation.
Factors considered include the size of the business or operations, the resources and nature of the business, the business and operational priorities and the practicability and cost of the measures in question.
Complying with the positive duty might mean having policies aimed at preventing discrimination and harassment, and making sure all staff are aware of their obligations. It might also include having an effective independent complaint-handling or grievance procedure, and a process for reviewing and improving compliance.
Tips when considering your positive duty
Make things visible;
Gather relevant information;
Look around your organisation and think about who you interact with and how
Consult with internal and external stakeholders;
Analyse information and identify key issues and priorities.
Set out your plan of action. Take an approach that is relevant to your size, resources and functions. Develop new policies and change practices where needed. Outline the objectives you think you should achieve to prevent discrimination, sexual harassment and victimisation.
Implement your plan and train your staff.
Monitor what happens and revisit your approach consistently and when necessary. For larger organisations this should be part of the normal business planning cycle.
These measures may constitute reasonable and proportionate measures under the positive duty.
If you are concerned about your organisations’ workplace behaviour risk compliance complete our free survey for a complimentary compliance audit.
Author: Stuart KinG
Stuart King is Managing Director of Risk to Business and a leading commentator on Workplace Bullying. The Risk to Business team is committed to reducing behavioral harm in workplaces around Australia.
Telephone: 03 8677 0884