It may mean that someone is being bullied, for example. If you believe that someone is being discriminated against or harassed, then this is an issue you can as an OHS rep.
Under both Victorian and Federal Equal Employment Opportunity and Anti-discrimination legislation, workers have the right to a workplace that is free from discrimination and harassment (see our FAQ on Discrimination and Harassment). The legislation makes it illegal to discriminate against someone on the basis of certain characteristics. Discrimination means treating someone unfairly or unfavourably because of a personal characteristic such as their sex or race or age. Discrimination can also be setting a requirement that people with a particular characteristic cannot meet and which is not reasonable.
Under the Equal Opportunity Act 2010 (Vic), the following personal characteristics are protected:
- a disability, disease or injury, including work-related injury
- parental status or status as a carer, for example because they are responsible for caring for children or other family members
- race, colour, descent, nationality, ancestry or ethnic background
- age, whether young or old, or because of age in general
- employment activity, for example because they ask questions or raise concerns about their rights or entitlements at work
- industrial activity, including being a member of an industrial organisation like a trade union or taking part in industrial activity, or deciding not to join a union
- physical features, such as height, weight, size, hair or birthmarks. The term 'bodily characteristics' has been interpreted widely and has been found to include tattoos and the styling, colour and location of hair
- religious belief or taking part in religious activity, or not holding a religious belief
- pregnancy and breastfeeding
- lawful sexual activity
- sexual orientation or gender identity, including gay, lesbian, bisexual, transsexual, transgender, queer and heterosexual
- marital status, whether married, divorced, unmarried or in a de facto relationship
- political belief or political activity
- an association with someone who has, or is assumed to have, one of these characteristics, such as being the parent of a child with a disability
- it is also illegal to engage in sexual harassment.
In changes also made in 2010, employers must not refuse flexible arrangements for an employee with parental or carer responsibilities, unless it is reasonable to do so in the circumstances.
Furthermore, under the Victorian OHS Act, employers have the duty to provide and maintain a working environment that is safe and without risks to health.
So harassment and discrimination are OHS issues as well.
Under both pieces of legislation, it is the legal duty of the employer to ensure that the workplace is free from discrimination and harassment. In a recent decision, the NSW IRC stated that it was insufficient for an employer to simply explain employees' rights and confirm a policy of equal opportunity to avoid blame when allegations of discrimination and harassment arise. Active and material steps have to be taken to create an appropriate work culture.
The employer must also ensure that a person is not sexually harassed. In 2011, amendments to the (federal) Sex Discrimination Act 1984 made it unlawful for "a person to sexually harass another in the course of seeking, or receiving, goods, services or facilities from that person". Yet, sexual harassment is prevalent in Australian workplaces. One in four women have experienced harassment at work, and men's harassment of other men is also on the rise.
A number of 2013 cases and decisions demonstrated that courts and tribunals will hold employers vicariously liable for the unacceptable conduct engaged in by their employees, and to make orders (including significant amounts of compensation or damages to the employee) against individual harassers, directors and independent contractors whose actions either constitute sexual harassment or otherwise contribute to such harassment taking place. The same could apply if employers take no action when a client or customer sexually harasses an employee.
If you believe you are being discriminated or harassed, take the issue to both the OHS rep and your union delegate. If you are the OHS rep, contact your union for more advice and assistance.
Sexual Harassment in the Workplace resources from the Australian Human Rights Commission:
- Know The Line - a national awareness raising strategy launched in June 2014. This is a tripartite partnership between the Australian Human Rights Commission, the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI) to target employers and employees as part of broader efforts to prevent and reduce the harm of sexual harassment in Australian workplaces. The site has information and resources for employees and employers.
Ending workplace sexual harassment: A resource for small, medium and large employers.
The resource aims to assist small, medium and large employers to understand and meet their legal obligations under the Sex Discrimination Act. It also provides practical guidance on how employers can prevent sexual harassment and how to respond effectively when it occurs.
- Effectively preventing and responding to sexual harassment: a code of practice for employers (2008)
- Recognising and responding to sexual harassment in the workplace: Information for employees
Information for workers: Work Out Your Rights. The site has information sheets, FAQs, where to get more information, how to get help, and more.
Information for employers: the site has great resources, including a summary of the legislation, fact sheets, best practice guidelines and more.
- Bystanders must join fight against bullying and a 2012 paper Encourage. Support. Act!: Bystander approaches to sexual harassment in the workplace, which examines he role bystanders can play in preventing and reducing the incidence of sexual harassment.
From the Victorian Equal Opportunity Commission, Information targetted to the Workplace For example
Enquiries/Complaints Line (9am–5pm Monday to Friday) for more information and advice: 1300 292 153 (TTY: 1300 289 621) Enquiries can also be sent via email
- In 2007 Europe's unions and employer organisations signed a framework agreement to fight against harassment and violence at work. Negotiated over ten months, the text commits the signatories to combatting all unacceptable behaviour that can lead to harassment and violence at the workplace. This was to be implemented by April 2010.ETUC news release. Framework agreement on harassment and violence at work
- From the TUC, UK's peak union council: TUC guide to your rights on sexual harassment, union reps' guide to addressing sexual harassment [pdf] and report, Still just a bit of banter? [pdf] Everyday Sexism Project and 'shouting back' platform.
Last amended November 2019
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