15 Key Points to Note
Recent legislation and decisions by the Fair Work Commission have sent a clear message to employers that having a workplace policy alone is not enough.
Tick and Flick won’t stick
…when it comes to matters concerning unlawful behaviour, such as the Sex Discrimination Act 1984 (Cth), or respectful behaviour in the workplace.
Having a policy on file that is accessible, having it distributed, or even having employees read and sign their acknowledgement of understanding is no longer sufficient.
Instead, the requirement is Positive Duty.
Broadly speaking, this means:
1. Having a policy
2. Educating employees
3. Taking Positive steps to ensure they are understood
4. Having clear expectations of behaviours
5. Outlining potential consequences when breached.
In addition, in Samad v Phosphate Resources Ltd [2024] FWC 2868 (Samad v Phosphate), FWC deputy president, Perth, Mr Peter O’Keeffe, in his conclusion on 16 October 25, recommended that:
6. Training about acceptable workplace behaviours needs to be culturally and linguistically appropriate
7. Interactive
8. Address the WHY (purpose and reasons) in addition to the WHAT.
9. Deeper dives into the layers of complexity and applications of a policy each time it is revisited.
10. This assumes repetition of education and explanation of policies.
In the above case, a truck driver who made sexual gestures and inappropriate comments to/about another employee was dismissed for ‘serious misconduct’. Phosphate, the employer had the following policies in place 1. Code of Conduct; 2. Standards of Behaviour Policy; 3. Anti-Discrimination; 4. Harassment Procedures and Psychosocial Safety in our Workplace Policy. In addition, Samad attended a 30-minute Toolbox meeting where a presentation was made, and copies were made available to take away and read in his own time.
O’Keeffe found this inadequate and likened it to a ‘tick and flick’ exercise.
Further recommendations for employers include:
11. Making the process compulsory for all new and existing employees
12. Acknowledge and reflect the context of the employees, their needs and experiences
13. Leadership involvement – both words and behaviours – to highlight its importance and seriousness.
14. Facilitated – with active participation – including time for discussion, feedback and debate
15. Opportunity to ask questions and express concerns, ambiguities or doubts.
State jurisdictions are also increasing the temperature on these matters. In QLD, from March of this year, employers will be required to (a) Identify Risks, and (b) Prepare a prevention plan when it comes to managing the prevention of sexual or gender harassment in the workplace. Work Health and Safety Regulation 2011 (Qld)
The above is general information.
If you are unsure what specific steps to take, please reach out to us +61 8 6377 7606
