MGF2341 Managing Employee Relations

Overcoming inappropriate behaviour and incivility at

the workplace: Discrimination, harassment, bullying

In Nov 2017, 39 Vice

Chancellors were requested by
the Sex Discrimination
Commissioner, Kate Jenkins,
to disclose their actions in
response to the National report
on sexual assault and sexual
harassment at Australian
universities.
(https://www.humanrights.gov.au/au
dit-2017)
MGF2341 Managing Employee Relations
It is unlawful to harass Indigenous and Torres Strait Islander
a person because of people experience higher levels of racial
discrimination, reflecting institutional and
their disability
(https://www.humanrights.gov.au/e structural racism.
mployers/good-practice-good-
business-factsheets/disability-
(https://www.humanrights.gov.au/news/speeches/statement
-un-committee-elimination-racial-discrimination-geneva-
discrimination)
switzerland)
I would like to thank colleagues, Jenny Voon and Joyce Opare-
Addo, for earlier input into the slides on this topic.
1
 Learning objectives
q To identify contemporary discriminatory issues in
Australian diversified workplaces e.g. harassment

q To introduce key terms

q To examine the legal protections which address

and/or prevent workplace discrimination

q To identify the Industrial Relations laws to overcome

discrimination

q To consider the importance of organisational policies

in overcoming inappropriate behaviours at work

MGF2341 Managing employee relations 2

What is equality and equity?

• Equality: ensure individuals or

groups of individuals are treated
fairly and equally. Not less
favourably because of a particular
characteristic such as race, gender,
disability, religion or belief, sexual
orientation, and age.
• Equity: maintain fairness and social
justice. Putting measures into
place to overcome employment
disadvantage faced by equal
opportunity groups.

Image source: Interaction Institute for Social

Change | Artist: Angus Maguire

MGF2341 Managing Employee Relations 3

Equality vs Equity in Practice

• Equal Employment Opportunity (EEO) : a legally based program

to ensure equal access to employment opportunities on the
basis of merit and which makes discriminatory behaviour illegal.

• Affirmative Action (AA): a program that targets groups of people

to overcome discrimination; can include goals and quotas for
under-represented groups e.g. quotas for women members of
Parliament by the Australian Labor Party (ALP).

Presentation title 4
 Australian legal protections against discrimination and
harassment
Section 28A of the Sex Discrimination Act 1984 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 in relation to a person. 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.

Section 18C of the Racial Discrimination Act 1975 prohibits offensive

behaviour based on racial hatred. Offensive behaviour includes an act
that is likely to offend, insult, humiliate or intimidate another because of
their race, colour or national or ethnic origin.

Section 25 of the Disability Discrimination Act 1992 prohibits harassment

in relation to an employee’s disability.
MGF2341 Managing Employee Relations 5
 Employees are protected from discrimination at all stages of employment
(recruitment, workplace terms and conditions, and dismissal but NOT
remuneration).

The personal characteristics protected by the anti-discrimination law

include:
• age
• parental and carer status
• disability
• gender identity, lawful sexual activity and sexual orientation
• industrial activity
• marital status
• physical features
• political belief or activity
• pregnancy and breastfeeding
• race
• religious belief or activity
• sex
• expunged homosexual conviction
• personal association with someone who has, or is assumed to have, one of these personal
characteristics.
(http://www.humanrightscommission.vic.gov.au/the-workplace/workplace-
discrimination/type-of-discrimination)

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 What is ‘discrimination’?
1. Direct discrimination: based on characteristics (e.g. race, religion,
gender, mental health, etc) and arises from stereotypes.
Occurs when a person or group of people are treated less favourably
than another person or group of people in similar circumstances but
with different characteristics:

Examples:
• An employer dismisses a woman on the basis of gender or on the basis of
pregnancy
• a person who is the best person for the job is not employed because of
their disability (https://www.humanrights.gov.au/employers/good-practice-good-
business-factsheets/disability-discrimination)

Remedies in Australia: legal damages for pecuniary loss, hurt, humiliation

MGF2341 Managing Employee Relations 7

 What is ‘discrimination’?
2. Indirect discrimination: arises when company policies and
practices appear to be neutral but produce adverse outcomes
for people with specific characteristics:

Examples:
• A company makes a promotion based upon 5 years of continuous service which
disadvantages carers who may take time off to have children.
• requiring deaf employees to attend meetings where no Auslan interpreter is
provided to help them understand what is being said can cause difficulty in
participation (https://www.humanrights.gov.au/employers/good-practice-good-
business-factsheets/disability-discrimination)

Remedies in Australia: legal damages are awarded for pecuniary

loss, hurt, loss of career prospects, stress, humiliation

MGF2341 Managing Employee Relations 8

What is ‘discrimination’?
3. Systemic discrimination is
widespread and long-term
disadvantageous behaviour against a
specific group of people arising
because of how a national or
workplace policy, practice or culture
operates.
§ Meyerson and Fletcher (2000)
found that gender discrimination
is so deeply embedded in
organisational life as to be
virtually indiscernible:

§ A combination of direct,
indirect and systemic
discrimination against
women.
§ See ‘Benevolent Sexism: A
Feminist Comic Explains
How it Holds Women Back’
Guardian, 13 August 2020
Susan Fiske and Peter Glick
theory of benevolent sexism

MGF2341 Managing Employee Relations 9

 2007-2021
Social inclusion and multiculturalism

Australian Federal 1990s-2000s

Multiculturalism/productive diversity
Government Equal Employment Opportunity
Approaches to
Cultural Diversity 1970s-1980s
‘Mutliculturalism’
and Inclusion
Racial Discrimination Act 1975
Affirmative Action (EEO for Women) 1984

1960s-1970s
Integration/’Melting Pot’ ideology

1950s-1960s
Assimilation/‘Australianisation’
Monoculture

1901-1972
White Australia Policy
Exclusion/Homogenous Society
 Racial discrimination in multicultural Australia
(28 November 2017) https://www.humanrights.gov.au/news/speeches/statement-un-
committee-elimination-racial-discrimination-geneva-switzerland

• More than 300 ancestries

• More than 25% of our population was born overseas, and about 49% have at least one
parent born overseas. Australia’s Aboriginal and Torres Strait Islander (Indigenous)
population is also growing.
• Diversity is an accepted reality in Australia and is considered as a strength of our
national life.
• However, racial intolerance and racial discrimination are on the rise in Australian society.
The Scanlon Foundation’s Mapping Social Cohesion study (2016): 20% of Australians
had experienced discrimination based on race, ethnicity or religion – up from 15 % in
2015.
• Migrants from African countries, and other non-English speaking backgrounds, report
relatively high levels of discrimination.

The Racial Discrimination Act 1975 (Cth) and The Racial and Religious Tolerance
Act 2001 set the standard for racial equality and tolerance to strengthen
Australia’s multiculturalism and protect against racial discrimination.
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 Gender and Sexual Orientation Discrimination
http://www.humanrights.gov.au/news/speeches/sexual-harassment-safer-workplaces

Gender inequality is the result of the unequal power distribution between men and women:
Examples:
(1) Underrepresentation of women in leadership and in decision-making roles in Australia,
with just 14 female CEOs in the ASX 200 (Chief Executive Women (CEW) ASX200
Senior Executive Census 2018); 43 of 150 Federal Members of Parliament are women.

(2) Average full-time weekly wage for a woman is 14-17% less than a man’s and that
women do 1.8 times as much housework and two and half times more child care than
men.
(3) Increased job losses as a result of pregnancy discrimination or breastfeeding leading to
‘family-friendly’ amendments to the Fair Work Act (July 2013).

(4) Women’s workforce participation has also worsened as a result of COVID-19 with
many female-dominated industries being particularly hit, women’s dominance in casual
roles making them more likely to lose their jobs and women taking up additional home
responsibilities due to school and childcare closures (See Women’s Work by Grattan)

Lesbian, gay, bisexual, trans and intersex (LGBTQIA+)

rights (http://www.humanrightscommission.vic.gov.au/human-rights/lgbti-rights#gender-identity-in-
goods-and-services)The Equal Opportunity Act 2010 makes it against the law to discriminate
against a person on the basis of their sex, sexual orientation, or gender identity 12
Time for a reflective break – Add words to your glossary

Equity
Equality
Discrimination – the different types of discrimination

The relevant Acts of Parliament

13
 https://www.abc.net.au/news/2017-11-22/labor-vs-
coalition-female-representation-v2/9181080

MGF2341 Managing Employee Relations 14

 Quota/target timeline in the Australian political arena:
1994 — ALP sets quota to preselect women in 35 per cent of winnable seats by 2002

2012 — ALP updates quota to preselect women in 40 per cent of winnable seats

2015 — ALP updates quota to preselect women in 50 per cent of winnable seats by 2025

2016 — Coalition sets target to preselect women in 50 per cent of winnable seats by 2025

• Former Liberal frontbencher, Craig Laundy, suggests quotas to help the Liberal Party boost
its female representation.

• Liberal Prime Minister, Scott Morrison, has a history of saying candidates should be picked
on merit.

• Liberals are still grappling with how to deal with reports female MPs were bullied by Male
MPs during the leadership spill (Malcolm Turnbull to Scott Morrison, 2018) and in 2021
there have been reports of sexual harassment and rape involving Liberal Ministerial staffers
that are being investigated.

• In March 2021, Prime Minister Scott Morrison has suggested quotas maybe considered by
the Federal Liberal Party as a way to manage ‘the Liberal’s women problem’ OR should
that be ‘the Liberal’s men’ problem?
MGF2341 Managing Employee Relations 15
 Toxic culture …… Time for change

Very few female staffers who are ‘older’ because women have to decide between career and
family commitments due to the reality of staffer work: extended hours when in Canberra
and having to be away from home in the electorate when Parliament is sitting.

Ministers are responsible for what happens in their office, not HR, under the Westminster
System but this is failing.

Gender-based inequalities and the ‘usual cultural workplace norms’ heavily embedded in
politics.

Structurally the procedures in Parliament need to change e.g. having rules of practise in
Question Time; not more personal attacks on questioners; introduce affirmative action
quotas across Parliament to increase all types/characteristics of diveristy; independent
commissions of corruption; independent HR function; Members of Parliament become
employers and need to manage people when they may not have ever had to do this
before – need training in ethics, rights, and obligations.

Parliament should be diverse and inclusive at all levels.

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 Preventing discrimination in the workplace
(http://www.humanrightscommission.vic.gov.au/the-workplace/workplace-discrimination/workplace-home-22)

Employers:

1. Legally responsible for acts of discrimination and sexual harassment that occur at work or are
connected to the workplace.

2. Have a strong and unambiguous equal opportunity policy to prevent discrimination and sexual
harassment in the workplace

– an effective equal opportunity policy will set out in clear and simple terms what is – and isn’t –
acceptable workplace behaviour.
– minimise confusion or uncertainty among staff and managers, and provides a solid foundation for
building a safe, productive and respectful working environment.
– helps staff understand their rights and responsibilities to reduce the risk of an employer’s liability
for acts of discrimination and sexual harassment in the workplace.
3. Promote equal opportunity in the workplace to ensure that everyone understands the policy and that
it operates effectively in practice.

4. Establish a process for resolving complaints of discrimination that do arise.

The Commission encourages employers to look beyond the minimum legal requirements of
equal opportunity law and to strive for best practice which is a culture of employee
relations. 17
 Sexual Harassment in Australia
http://www.humanrights.gov.au/news/speeches/sexual-harassment-safer-workplaces

The Sex Discrimination Act prohibits ‘unwelcome conduct of a sexual nature’ in a

number of areas of life, including in the workplace.

An Australian Human Rights Commission inquiry into workplace sexual harassment published in 2020:

• 1 in 3 people had been sexually harassed in the workplace in the past 5 years (2 in 5 women (39%)
and 1 in 4 men (26%))
• Employees under 30, LGBTQIA+ workers, Aboriginal and Torres Strait Islander people, disabled,
CALD, migrant or temporary visa workers and those in precarious or insecure work arrangements were
more likely to experience sexual harassment
• Workplace settings increase the likelihood of experiencing sexual harassment (certain industries like
information, media and telecommunication and the arts, male-dominated organisations, those with high
level contact with third parties and those with hierarchical structures such as law firms, the police and
military)
• 79% said one or more of their harassers were male
The Australian Bureau of Statistics Personal Safety Survey (2016) found that:

• 1 in 2 women and 1 in 4 men had experienced sexual harassment during their lifetime (in any context,
including work).
• 1 in 6 women and 1 in 11 men experienced sexual harassment in the last 12 months
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Addressing Sexual Harassment in Australia
• The AHRC’s Respect@Work (2020) concluded with 55 recommendations.
• The government agreed to 40, agreed in principle to five, agreed in part to one and
noted nine as outlined in their Roadmap for Respect in April 2021.
• In line with this commitment, the government introduced the The Sex Discrimination
and Fair Work (Respect at Work) Amendment Bill 2021 on June 24th

• Proposed changes include:

• Extending coverage of protections to more employees (interns, volunteers, self-

employed workers)
• Clarify that the scope of the SDA extends to members of parliament, their staff and
judges and remove the existing exemption of state public servants
• Clarify that victimising conduct can result in both criminal and civil action
• Extend the timeframe for matters to be handled by the AHRC
• Clarifying and expressly providing that the FWC may issue stop orders to stop sexual
harassment
• Clarifying that sexual harassment can be a valid reason for dismissal

Presentation title 19
 Practical implications to address and prevent sexual harassment
http://www.humanrights.gov.au/news/speeches/sexual-harassment-safer-workplaces

Reform HRM Policies: (A Tripartite Approach involving active participation

of employers, employees/unions, government)

• Promote gender equality within organisation, ie. need to see more women in leadership
roles across all industries. For examples: Australia Post eliminated the gender pay gap.
Westpac has achieved a gender balanced leadership team.

• Instil organisational culture within the workplace of zero tolerance for sexual
harassment, promoted at all levels of leadership with greater commitment. A shift to
engage more people in changing the culture.

• Develop and implement a sexual harassment policy to ensure awareness of the policy,
and know where to go to report incidents when they occur and protected from
victimisation.

• Give a voice to victims with a better understanding of what sexual harassment is, how
commonly it occurs, and of the damage it can do to victims and workplaces.

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 Industrial Relations Law – The role of the Anti-Discrimination Act
The provisions of the Anti-Discrimination Act apply whether the person is employed under
an award, or is employed without an award, or there is no enterprise agreement in place eg:
• independent contractors working under a 'contract for service’
• commission agents
• contract workers
• partnerships of more than six partners
• employment agencies
The original Conciliation and Arbitration Act 1904 protected trade union members against
discrimination and this was Australia’s first form of anti-discrimination legislation.
Not covered by the Anti- Discrimination Act:
• most voluntary workers – but they are covered by the sexual harassment provisions
• people employed in private households
• people employed in workplaces with less than six employees
• federal public servants
• people employed by private educational institutions

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 Australian Anti-Discrimination Law

• Australian Constitution is very weak on human rights and employment rights

protection – think back to why the Australian Charter of Employment Rights was
developed (Week 3).

• Anti-discrimination laws are a relatively young body of law:

– First State legislation passed in 1966 in South Australia

– First Federal legislation passed in 1975
– Entirely statutory in creation (i.e. Acts passed by Parliament)
• Parliaments and courts have not managed to create a coherent body of detailed
legal rules regarding discriminatory behaviour.

• Grants civil rights to those residing in Australia but generally to breach anti-
discrimination law in Australia is not a crime.

• Operates in much the same way as torts law where civil action is brought under the
legislation.

• Social policy goals of the laws are not actually clear.

MGF2341 Managing Employee Relations 22

 The Fair Work Act 2009 and discriminatory issues

• The FW Act makes unlawful for the first time at a Federal level a wide range of
‘adverse action’ against employees on a number of discriminatory grounds.

• The provisions do not draw a distinction between direct and indirect discrimination,
potentially exposing employers to liability for indirect discriminatory behaviour

• The adverse action provisions do not apply though to actions that are not unlawful
under anti-discrimination laws (for example where indirect discrimination is
‘reasonable in the circumstances’)

• In some respects, the discriminatory grounds covered go beyond the protection

offered under Federal and State equal opportunity laws:

– E.g. the grounds of discrimination are broader than those under most Federal
equal opportunity legislation and the range of remedies available greater,
including injunctions and penalties, as well as compensation.

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MGF2341 Managing Employee Relations
 Workplace bullying

Bullying is defined under section 789FD of the Fair Work Amendment Act 2013 (Cth) as when
an individual or group of individuals repeatedly behave unreasonably towards a worker and
that behaviour creates a risk to health and safety.

Workplace bullying is verbal, physical, social or psychological abuse by your employer (or
manager), another person or group of people at work.

Bullying, unlike harassment, is a sustained pattern of negative behavior; often relating to the
power imbalance between the person bullying and the person being bullied

Bullying can happen in any type of workplace, from offices to shops, cafes, restaurants,
workshops, community groups and government organisations.

Workplace bullying is NOT lawful direction to an employee by a supervisor or manager.

https://www.humanrights.gov.au/workplace-bullying-violence-harassment-and-bullying-fact-
sheet

An employer’s duty of care to its employees may be breached if bullying occurs within the
workplace. Persons held accountable for such behaviour can face prosecution under
the Occupation Health and Safety Act 2004 (Cth). 24
MFD2341 Managing Employee Relations
 Time for a reflective break

If you were going to change the culture of a workplace, be it the

Australian Federal Parliament or a more ‘regular’ workplace,
where would you start and why?

This is good preparation for the FibreTek case study.

25
 A starting point for organisations
Why have workplace policies?
ØWorkplace policies are statements of principles and practices dealing
with the ongoing management and administration of the organisation
and its continuity and should be aimed at prevention of inappropriate
behaviour and attitudes.

ØPolicies are a guiding frame of reference for how the organisation

deals with everything from its day-to-day operational problems or how
to respond to requirements to comply with legislation, regulation and
codes of practice i.e. a set of expectations about behaviours and
attitudes required of all people at the workplace.

ØPolicies must be reasonable and transparent so that employees are

aware and clearly understand what the policy is trying to achieve and
what their responsibilities are under the policy.
 A workplace policy should:

A workplace policy should:

ØSet out the aim of the policy
ØEmployees and managers need to know and understand the ‘rules’

ØExplain why the policy was developed

ØE.g. in response to amendments to the Fair Work Act and
subsequent removal of penalty rates from the Retail Industry Award
ØE.g. in response to legislation of the country in which your
organisation is operating e.g. Whistleblower legislation in Australia
from 2019
ØList to whom the policy applies
ØEmployees, managers, contractors, consultants, suppliers etc
ØSet out clearly what is acceptable or unacceptable behaviour
ØInclude the tolerance level e.g. zero tolerance of sexual harassment;
0.02g/dl blood alcohol maximum
 A workplace policy should:

A workplace policy should:

ØSet out the consequences of not complying with the policy

ØExplain any employee appeal process/grievance process attached to the
policy
ØProvide a date when the policy was developed, reviewed or updated:
ØIf there is a change in equipment or workplace procedures or
organisational structure, you may need to amend your current
policy or develop a new one
ØEmployment law amendments, or changes to your industry award
or enterprise agreement will also require a review of your policies
 The steps in developing a workplace policy:

Step1: Planning and consultation/employee voice

Step 2: Research and define policy terms

Step 3: Draft policy

Step 4: Implementation

Step 5: Compliance and evaluation of outcomes

Step 6: Review and update as necessary

 Summing up:
All people have the potential
to discriminate, harass, bully
even if there are laws to
prevent such behavior. Law
can change overt behavior
because of its punitive
element but this does not
necessarily mean that
underlying beliefs, attitudes,
and perceptions change.
MGF2341 Managing Employee Relations
Bullying can also equate with
violence in some cases as
can harassment. It is up to
everyone at the workplace to
identify and act on such
behaviours to protect people
at the workplace and to
create an ER culture. Like
WHS, it is the responsibility of
everyone at the workplace.
It is essential that companies
enforce the law to prevent
bullying, harassment and
discrimination. Company
policies and codes of conduct
must be current, transparent,
and put into operation
effectively to eradicate
incivility and poor (illegal)
behaviours at the workplace
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