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Last updated: August 2008

Employment framework

A workplace based on respect and valuing diversity

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Agency heads have a range of obligations in relation to workplace diversity and anti-discrimination legislation that are relevant to the employment responsibilities of the Commonwealth. The Workplace Relations Act 1996 makes it unlawful to terminate the employment of an employee on certain grounds, including race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The anti-discrimination Acts below deal with discrimination that arises in the workplace or in other circumstances.

This section covers:

• Public Service Act 1999
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Age Discrimination Act 2004
• Human Rights and Equal Opportunity Commission Act 1986
• Equal Employment Opportunity (Commonwealth Authorities) Act 1987
• Long Service Leave (Commonwealth Employees) Act 1976
• Maternity Leave (Commonwealth Employees) Act 1973 and other parental leave provisions
• Bullying and Harassment
• Vicarious Liability under anti-discrimination law
• Commonwealth Disability Strategy

Public Service Act

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Agency heads must uphold and promote a workplace that is free from discrimination (section 10(1)(c) of the Public Service Act 1999).

An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment (section 13(3) of the Public Service Act).

Agency heads may impose sanctions, including termination of employment, where an employee is found to have breached the Code of Conduct (section 15(1) of the Public Service Act).

Agency heads must put in place measures directed at ensuring that employment and workplace arrangements take appropriate account of employees who are seeking to balance individual needs and the achievement of organisational goals (clause 2.11(1) of the Public Service Commissioner's Directions 1999 (the Directions).

Agency heads must put in place measures to:

• help prevent all forms of direct and indirect discrimination consistently with Commonwealth law
• recognise the positive advantages of, and help make best use of , the diversity available in the workplace (clause 3.2(1) of the Directions (the Directions).

Agency heads must assist employees balance their work, family and other caring responsibilities through mutually beneficial work practices. (see clause 3.2(2) of the Directions).

Agency heads must establish a workplace diversity program (workplace diversity program) (Section 18 of the Public Service Act). It must include measures to ensure:

• the agency’s corporate, business and human resource plans demonstrate that it values the diverse backgrounds of its employees and values, and is able to access and make use of, the diverse skills and experience of its employees
• workplace structures, systems and procedures assist employees to balance their work, family and other caring responsibilities
• engagement decisions take into account the diversity of the community as well as the goals of the agency and skills required
• equity in employment is promoted and upheld, through transparent and fair employment decisions and eliminating any employment-related disadvantage on the basis of being an Indigenous Australian, gender, race or ethnicity or disability (see clause 3.3 of the Directions).

Under clause 3.4 of the Public Service Commissioner's Directions 1999, APS agency heads must provide a copy of their agency's Workplace Diversity Program (including revisions to the workplace diversity program) to the Commissioner. Under clause 3.5, agency heads must also give information as required by the Public Service Commissioner so the Commissioner can evaluate and assess the effectiveness of agencies' workplace diversity programs for the State of the Service Report.

Agency heads must develop performance indicators for their workplace diversity program and evaluate and report on the effectiveness and outcomes of the program annually (see clause 3.5(1) of the Directions).

Agency heads must give the Commissioner information required to enable an assessment of the effectiveness of agencies’ workplace diversity programs for the State of the Service Report (see clause 3.5(2) of the Directions).

Agency heads must review the agency’s workplace diversity program every 4 years to make sure that is continues to give effect to the APS Values and achieve the outcomes mentioned in clause 3.3 (see above and clause 3.6 of the Directions).

In addition, clause 2.13(1)(b) of the Directions requires agency heads to put measures in place to eliminate any employment-related disadvantage in the agency on the basis of:

• being an Aboriginal or Torres Strait Islander
• gender
• race or ethnicity
  or
• physical or mental disability.

Disability Discrimination Act

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APS agencies, in common with all Australian employers, also have legal obligations under the Workplace Relations Act 1996 and the Disability Discrimination Act 1992 to ensure that, in their employment processes, they do not discriminate against people with disability.

The Disability Discrimination Act 1992 makes discrimination on the basis of disability unlawful and harassment on the basis of their disability unlawful. The Act also makes it unlawful to discriminate against ‘associates’ of a person with a disability (eg a person who cares for a person with disability, or is the partner of a person with disability) . In the employment context, this requires, amongst other things, that:

• staff of Australian Government organisations should display non-discriminatory attitudes in the workplace
• where necessary, reasonable adjustments are to be made to the workplace so that people with disabilities have equal opportunity to use and display their skills
• recruitment processes (such as advertising, interviewing, and other selection processes) should accommodate the needs of people with disability
• people with disability should have access to the same opportunities for engagement, promotion, transfer, training and other benefits offered with the employment .
• any reasonable adjustments are made to ensure that workplace premises and facilities are accessible to people with disability.

The Disability Discrimination Act states that it is not unlawful for a person to discriminate against a person with a disability in determining who should be offered employment or in dismissing the person if a person is unable to perform the inherent requirements of a job. The employer must take the person’s past training, qualifications, experience and performance and other relevant factors into account. The employer must also consider how a ‘reasonable adjustment’ could be made to enable the person to perform the requirements of the job, should discuss this with the person involved and consult other relevant sources of advice. For example, could a person with a vision impairment perform a clerical job with voice activated software? Where the employer is able to establish that it would impose an ‘unjustifiable hardship’ on the employer to provide the reasonable adjustment, it will not be unlawful discrimination.

A Management Advisory Committee Report, Employment of People with Disability in the APS, was launched on 30 August 2006 and provides eight objectives for promoting the employment of people with disability and identifies a range of better practice strategies for meeting those objectives. Individual agencies are to pursue those objectives, tailoring strategies to their particular circumstances. See further:

http://www.apsc.gov.au/mac/disabilitye.htm

Racial Discrimination Act

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The Racial Discrimination Act 1975 prohibits discrimination on the basis of race, colour, descent or national or ethnic origin. No one, including an agency head or an APS agency, is entitled take any action that would discriminate against a person by virtue of their race, colour, descent or national or ethnic origin.  Discrimination on these grounds can be direct or indirect.  Direct discrimination is where discrimination is based on any of these grounds.  Indirect discrimination occurs where a requirement or condition is imposed on a person, the requirement or condition is unreasonable, the person cannot comply with the requirement or condition resulting in that person not enjoying  a right on an equal footing with others of the same race, colour, descent or national or ethnic origin.

The Act recognises that ‘special measures’ are able to be taken in respect of groups or individual members. ‘Special measures’ aim to provide benefits to, and advancement of, a group, or individual members, to ensure equal  enjoyment or exercise of their human rights with those not of that race, colour, descent or national or ethnic origin.

Under the Racial Discrimination Act offensive behaviour based on race is unlawful. Prohibited behaviour includes behaviour that is reasonably likely in all the circumstances to be offending, insulting, humiliating or intimidating another person because of his or her race, colour or national or ethnic origin.

The Act also ensures equality before the law. It does this by ensuring that where a person of a particular race, colour or national or ethnic origin has a right limited or denied under a law of the Commonwealth, state or territory, the RDA acts to extend  that  to that person to ensure equal enjoyment of the right equally with others not of that race colour, descent or national or ethnic origin.

 

Sex Discrimination Act

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Under the Sex Discrimination Act 1984, it is unlawful (subject to some exceptions) to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy in the following areas of public life:

• buying or selling land
• administration of Commonwealth laws and programs
• education
• employment
• accommodation
• provision of goods, services or facilities.
• requests for information on which sex discrimination might be based.

It is also unlawful for an employer to discriminate against an employee on the ground of the employee’s family responsibilities by dismissing the employee.

The Act further provides that it is unlawful to sexually harass a person. The Act identifies sexual harassment as unwelcome sexual conduct which makes a person feel offended, humiliated and/or intimidated where that reaction is reasonable in the circumstances. It can involve unwelcome touching, hugging or kissing, suggestive comments or jokes, unwanted invitations to go out on dates or requests for sex, insults based on sex or sexually explicit emails or text messages. The Act prohibits sexual harassment in almost every employment situation.

Under the Act, it is unlawful to engage in direct or indirect sex discrimination.

Direct sex discrimination occurs where, because of a person’s sex or a characteristic attributed to a person’s sex, the discriminator treats the aggrieved person less favourably than he or she would treat a person of a different sex. An example of direct sex discrimination would be an employer refused to interview a suitably qualified woman for employment in a male dominated industry.

Indirect discrimination occurs where a discriminator imposes a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of a particular sex. The condition, requirement or practice may ostensibly appear neutral. Indirect discrimination will not be unlawful where it is a reasonable condition, requirement or practice in the circumstances. An example of indirect discrimination in the workplace would be where an employer implements a dismissal policy for employees based on the notion of ‘last persons hired, first persons fired’. If the last twenty people hired were all women, and the first persons hired were all men, the women would be unfairly and unreasonably disadvantaged compared to the men.

The Act also provides certain exemptions to which the Act does not generally apply including:

• the provision of accommodation for employees or students
• religious bodies (such as the ordination of a priest)
• education institutions established for religious purposes
• sport and combat duties
• certain acts done under statutory authority

An employer may also be held legally responsible for acts of sexual harassment committed by employees unless the employer has taken all reasonable steps to prevent the sexual harassment from taking place.

Age Discrimination Act

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The Age Discrimination Act 2004 makes it unlawful to discriminate against someone on the ground of age in respect of the following:

• employment and related matters
• education
• access to premises
• provision of goods, services and facilities
• provision of accommodation
• disposal of land
• administration of Commonwealth laws and programmes
• requests for information on which age discrimination might be based.

Under the Act, it is unlawful to engage in direct or indirect age discrimination.

Direct age discrimination occurs where, because of a person’s age, the discriminator treats the aggrieved person less favourably than he or she would treat a person of a different age. An example of direct age discrimination may be where an older person is not employed because it is assumed that an older person would not have adequate computer skills.

Indirect discrimination occurs if a person of a particular age is disadvantaged because the person cannot meet a condition, requirement or practice that is neutral as to age on its face, but is more difficult for people of that age to meet than people of another age. However, if such a condition is reasonable in the circumstances, it will not be unlawful discrimination. An example of indirect age discrimination may include where an employer requires an older person to meet a physical fitness test which more young people can be expected to meet, if the fitness standard is not reasonable for the job in question.

In general terms, under the Act it is not unlawful to discriminate against a person because of the person’s age if the person cannot perform the inherent requirements of a job. Further, it is generally not unlawful to provide bona fide benefits to persons of a particular age (for example discounts to holders of a Seniors Card), or to commit an act that was intended to meet a need that arises from the age of a particular group (for example young people may have a greater need for welfare services), or to reduce a disadvantage experienced by people of a particular age (for example older people are often more disadvantaged by retrenchment than are other people).

The Act also provides certain exemptions to which the Act does not generally apply including:

• Commonwealth laws that govern taxation, social security, migration and superannuation
• State laws
• certain health programmes
• direct compliance with orders fixing minimum wages or industrial agreements and awards.

Human Rights and Equal Opportunity Commission Act

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Complaints can be made under the Human Rights and Equal Opportunity Commission Act 1986 about alleged breaches of human rights in a range of situations including the administration of Australian Government programs and the application of Commonwealth legislation.  The Commission may inquire into the complaint and, where it finds that there has been a breach of any human right may prepare a report with recommendations.  Where such a report is provided to Attorney-General it must be tabled in Parliament.

Human rights are defined in the Act by reference to international human rights treaties and declarations, including the International Covenant on Civil and Political Rights 1966 and the International Labour Organisation, Discrimination (Employment and Occupation) Convention 1958 (No.111). This can include, for example, complaints of alleged discrimination in employment on grounds of sexual preference  criminal record or union activity.

Complaints may also be made under the Act about a range of employers, including the Australian Government, about alleged impairment of equal opportunity in employment on a number of grounds which include sex and marital status.

Under the Act, it is not discriminatory to make a distinction, exclusion or preference in respect of a particular job based on its inherent requirements, or to introduce special measures for the benefit of minorities disadvantaged because of age, sex, family responsibilities or other reasons.

Equal Employment Opportunity (Commonwealth Authorities) Act

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The Equal Employment Opportunity (Commonwealth Authorities) Act 1987 requires Commonwealth authorities to develop equal employment opportunity programmes for women and designated groups (that is, Indigenous Australians, people from a non-English speaking background and their children and people with a disability). The Act applies to non-APS employing Commonwealth authorities, including those who employ a mix of non-APS and APS employees.

Long Service Leave (Commonwealth Employees) Act 1976

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The Long Service Leave (Commonwealth Employees) Act 1976 is a complete code for Commonwealth employees covered by the Act. There is no flexibility for agency heads and employees to negotiate different long service leave arrangements in agreements under the Workplace Relations Act 1996, other than in relation to how agencies exercise the discretions they have under the Act (for example, the minimum period of long service leave or whether staff are entitled to ask for advances of long service leave payments).

Maternity Leave (Commonwealth Employees) Act 1973 and other parental leave provisions

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The Maternity Leave (Commonwealth Employees) Act 1973 directly vests in an agency head (and a chief executive officer of a non-APS agency) various powers and functions in relation to maternity leave which may be delegated. The Maternity Leave (Commonwealth Employees) Act aims to provide employment protection for employees who become pregnant to safeguard the health of the mother and child in the period immediately before and after the birth of the child and to enable an employee to be absent from work to care for the child. The Maternity Leave (Commonwealth Employees) Act provides for up to 52 weeks of maternity leave, of which up to 12 weeks may be paid.

Agency heads may also have agency-specific obligations in relation to maternity leave under the Australian Public Service Award 1998 (APS Award), and their agency’s workplace agreement(s).

The maternity leave provisions of the Maternity Leave (Commonwealth Employees) Act, the APS Award or those in workplace agreements, and the maternity/parental leave provisions of the Workplace Relations Act 1996 may operate side by side within the APS.

The parental leave provisions of the Workplace Relations Act aim to help parents to reconcile their employment and family responsibilities.

The Workplace Relations Act guarantees a maximum of 52 weeks of unpaid parental leave (including maternity, paternity or adoption leave) under Division 6, Part VA – the Australian Fair Pay and Conditions Standard. The minimum entitlements under the Workplace Relations Act supplement and do not override entitlements under other Commonwealth legislation and awards, including the Maternity Leave (Commonwealth Employees) Act.

Bullying and harassment

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While the APS has focussed on maintaining a workplace free from the types of harassment covered by anti-discrimination legislation such as sexual harassment and racial discrimination, there is increasing recognition of the need also to deal with more subtle forms of bullying and harassing behaviour. Bullying and harassment are overlapping concepts that can encompass a broad range of behaviour.

While there is no standard definition of workplace bullying this term is generally used to describe repeated workplace behaviour that could reasonably be considered to be humiliating, intimidating, threatening or demeaning to an individual or group of individuals. It can be overt or covert.

In general terms, bullying and harassment differs from:

• expressing different opinions
• feedback or advice about performance that is provided to assist employees to improve their performance or standard of behaviour
  or
• legitimate and reasonable management decisions or actions

providing that all involved are treated with respect and courtesy.

Vicarious Liability under anti-discrimination law

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Federal and State anti-discrimination law provides that an employer may be legally responsible for discrimination and harassment which occurs in the workplace or in connection with a person's employment unless it can be shown 'reasonable steps' have been taken to reduce this liability.

What constitutes reasonable steps is not defined in legislation but 'reasonable steps' could include:

• preparation and regular circulation of a written policy prohibiting workplace discrimination and harassment
• ensuring that all staff are properly trained about workplace discrimination and harassment and its prevention
• establishing effective complaint procedures
• treating all complaints seriously and investigating them promptly
• ensuring that appropriate action is taken to address and resolve complaints
  or
• monitoring the workplace environment and culture.

An employer may be vicariously liable for the conduct of individual or groups of employees, contractors and other workplace participants (such as people who work on the same premises, but have different employers). The conduct can occur both within the usual work environment and elsewhere (such as at employer sponsored seminars, conferences, work functions, Christmas parties, business or field trips).

Agency heads must ensure that the working environment or workplace culture is not sexually or racially permeated or hostile. It may be a potentially hostile working environment if pornographic material is displayed, or crude conversations or innuendo and offensive jokes are part of the culture. A person has the right to complain about the effects of a sexually or racially hostile working environment even if the conduct in question was not specifically targeted at them.

The vicarious liability provisions of the legislation do not preclude individuals from being held liable for their own discriminatory or harassing behaviour in the workplace or in connection with their employment. It may be that both the employer who has been found to have not taken reasonable steps to prevent the discrimination and harassment from occurring and the individual who is the alleged discriminator or harasser will be held jointly liable for the behaviour.

Commonwealth Disability Strategy

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The Commonwealth Disability Strategy operates within the Disability Discrimination Act 1992 legislative framework and is designed to eliminate discrimination on the grounds of disability and to ensure and promote the principle that people with disabilities have the same fundamental rights as the rest of the community.

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