Anti-Discrimination and Harassment
A key obligation of an employer is to provide a safe working environment free from harassment, discrimination and bullying.
The Victorian thoroughbred racing industry must be committed to the well-being of its employees, to the advancement of their careers according to merit and to ensuring a safe, comfortable and rewarding workplace. This commitment will improve not only your business and the overall health and reputation of the thoroughbred racing industry. Every employee must be treated fairly on merit and must not be discriminated against on the basis of any personal attribute.
You need to ensure that your staff are aware of their obligations and that there is a clear policy and procedure in place for dealing with discrimination and harassment.
Anti-discrimination legislation (both Federal and State) aims to eradicate discrimination which can occur in the workplace. The legislation that applies to you as an employer in Victoria includes:
- Equal Opportunity Act 1995 (Vic)
- Fair Work Act 2009 (Cth)
- Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic)
- Racial and Religious Tolerance Act 2001 (Vic)
- Disability Discrimination Act 1992 (Cth)
- Human Rights and Equal Opportunity Commission Act 1986 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Workplace Relations Act 1996 (Cth).
It is against the law to treat an employee or a potential employee less favourable because of one of more of the above-listed factors. You are also generally liable for the behaviour of your employees; so if another employee discriminates, a complaint can be made against both you and the employee.
General Principles of Anti-discrimination and harassment
It is against the law to have discriminatory and unreasonable workplace policies, practices and procedures that are difficult for an employee to comply with because of more of more of the above-listed factors that are protected against the EO Act.
It is also unlawful for you to discriminate against your employees for having requested information or expressed concern about their employment entitlements such as rates of pay, overtime or annual leave.
If an employee is found to have breached any aspects of this legislation disciplinary action can be taken against them. You must treat the allegation of discrimination seriously and sympathetically and investigate the matter thoroughly and confidentially.
Employees must not be disadvantaged in their employment conditions or opportunities as a result of lodging a complaint. As the employer, you must ensure complainants and witnesses are not victimised in any way.
Consultation and communication
Your employee/s are fundamental to achieving your business objectives. Therefore, it is important to support mechanisms which encourage them to actively initiate, participate and respond to ongoing business improvement initiatives.
You must consult and seek the views of employees and take their views into account when making decisions about employment-related matters arising from:
- Implementing the relevant Award (ie Horse and Greyhound Training Award - Clause 8);
- The development of new and maintenance of existing policies and procedures;
- New Business and operational initiatives (ie rostering arrangements);
- OH&S initiatives in accordance with relevant legislation; and
- Changes in employment legislation.
You must advise employees of any impending change which may affect their your employment with you or the performance of their work. This is particularly important in cases involving the introduction of new work practices or processes. Employees should be given an opportunity prior to the changes to respond on such matters, particularly if they have concerns. Having considered responses to these issues, you should wherever possible take such reasonable action to minimise any adverse effects that such change may have on your employees. Employing a consultative approach which encourages employee participation with generally make the introduction of workplace change easier.
General Principles of Consultation
You should consult with your employee/s on a regular basis regarding all matters that affect their work. Over time you and the team will be able to use this consultative process as an opportunity to constructively raise matters to help the businesses' performance. Additionally to team consultation, direct communication between you and your employees on an ongoing daily basis is essential.
By maintaining a communication and consultation process, you should be able to discuss ways to resolve operational issues and recommend solutions and improvements over a range of areas including occupational health and safety. The purpose of consultative processes is to give everybody a voice, prioritise and resolve issues, and learn from others.
The various Awards and Acts require certain levels of consultation with your employees. Occupational health and safety is one example, already discussed. The Fair Work Act 2009, for example requires employee and employer consultation on the taking of parental leave.
A dispute resolution policy should be in place to assist in situations where an employee has a grievance or dispute in regard to any aspect of their employment.
If a policy is in place, all grievances can be handled using a consistent and fair approach, and in a way that everyone understands.
The main aim of any dispute resolution process is to ensure natural justice; consider the well-being of all parties concerned, and to achieve fair outcomes. No person shall be unlawfully discriminated against.
Dispute Resolution Procedure under The Horse and Greyhound Training Award 2010
The Horse and Greyhound Training Award 2010 details a Dispute Resolution procedure (Clause 9). It is recommended to utilise this if your employee/s are employed under this Award.
In the event of a dispute arising in the workplace, the procedure to be followed to resolve the matter will be as follows:
- The employee and the employee's nominated representative, if any, and their supervisor meeting and conferring on the matter; and
- If the matter is not resolved at such a meeting, the parties shall arrange for further discussions between the employee and the nominated representative, if any, and more senior levels of management.
- If the matter is still not resolved, discussions shall be held between the employers' and employees' representatives
- If the matter cannot be resolved it may be referred to Fair Work Commission
- While the parties attempt to resolve the matter work will continue as normal unless an employee has a reasonable concern about an imminent risk to the employee's health and safety.
As an employer, you must provide the following:
Fair wages and conditions of employment
The basic hourly rates of pay are contained in the Horse and Greyhound Training Award 2010 (clause 13). You should seek advice from Fair Work Australia on current pay rates if you are unsure. Casual employees must receive a 25% loading on their hourly rate (see Award). They are not entitled to receive annual or sick (personal) leave.
Casual employees should only be engaged to meet short term and/or irregular work needs or emergency situations. If they are working more regularly and on a long-term basis, they may be deemed to be a permanent full-time or part-time employee. The Award states that an employee who has been working for more than 12 weeks on a regular roster can elect to become a permanent employee. A casual employee must be engaged for a minimum daily period of 3 hours and not more than once on each day. For more information check the Horse and Greyhound Training Award 2010
Part-time employees receive the same conditions as a full-time employees but on a pro-rata basis.
The National Employment Standards are the basic minimum national conditions apply to all workplaces and employees in Australia. They are contained the Fair Work Act 2009. They are as follows:
- Maximum weekly hours of work- 38 hours per week, plus reasonable additional hours.
- Requests for flexible working arrangements- allows parents or carers of a child under school age or of a child under 18 with a disability, to request a change in working arrangements to assist with the child’s care.
- Parental leave and related entitlements- up to 12 months unpaid leave for every employee, plus a right to request an additional 12 months unpaid leave, and other forms of maternity, paternity and adoption related leave.
- Annual leave- 4 weeks paid leave per year, plus an additional week for certain shift workers.
- Personal / carer’s leave and compassionate leave- 10 days paid personal / carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
- Community service leave- unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
- Long service leave- a transitional entitlement for employees who had certain LSL entitlements before 1/1/10 pending the development of a uniform national long service leave standard.
- Public holidays- a paid day off on a public holiday, except where reasonably requested to work.
- Notice of termination and redundancy pay- up to 4 weeks notice of termination (5 weeks if the employee is over 45 and has at least 2 years of continuous service) and up to 16 weeks redundancy pay, both based on length of service.
- Provision of a Fair Work Information Statement- employers must provide this statement to all new employees. It contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, right of entry, transfer of business, and the respective roles of Fair Work Australia and the Fair Work Ombudsman.
Fair waged and standards of employment
The basic hourly rates of pay are contained in the Horse and Greyhound Training Award 2010 (clause 13). You should seek advice from Fair Work Australia on current pay rates if you are unsure.
Casual employees must receive a 25% loading on their hourly rate (see Award). They are not entitled to receive annual or sick (personal) leave.
Casual employees should only be engaged to meet short term and/or irregular work needs or emergency situations. If they are working more regularly and on a long-term basis, they may be deemed to be a permanent full-time or part-time employee. The Award states that an employee who has been working for more than 12 weeks on a regular roster can elect to become a permanent employee.
A casual employee must be engaged for a minimum daily period of 3 hours and not more than once on each day. For more information check the Horse and Greyhound Training Award 2010.
Part-time employees receive the same conditions as a full-time employees but on a pro-rata basis.
Flexible work arrangements
The National Employment Standards (NES) in the Fair Work Act 2009 introduces flexible work arrangements for employees with parental or carer responsibilities.
This builds upon the existing legislation in Victoria, namely the Victorian Equal Opportunity Act 2010. These laws recognise the need to balance work and family commitments.
What are parental or carer responsibilities?
Parental or carer responsibilities relate to the employee's role as a parent or carer to a child or another person who depends on the employee for care.
The NES Flexible Work Arrangements
The NES provides for a parent or carer of a child under school or a disabled child under 18 years old to make a request to have their work hours changed or varied permanently or temporarily to accommodate their carer responsibilities. In order to do this, the employee must have been employed by you for a minimum of twelve (12) months. It also applies to casuals who have been long term and who have a reasonable expectation of continuing employment with you.
The aim is to ensure discussions take place between the employer and the employee as to what can reasonably be achieved through flexible work practices to accommodate family responsibilities.
When recruiting or selecting new employees you must take care not to breach a range of laws including equal opportunity and anti-discrimination, sexual harassment, trade practices/fair trading and industrial relations laws.
To assist you to conduct pre-employment procedures this section provides; a guide to pre-employment, key issues during the pre-employment stage and pre-employment procedures:
Does the advertisement comply with equal opportunity and discrimination laws? Is the advertisement misleading or deceptive advertising?
Questions which are strictly prohibited include those which relate to the anti-discrimination and harassment law discussed in the previous sections.
The Job Interview
To avoid asking potentially discriminatory questions, you should prepare a list of questions which are relevant to the position, before the interview takes place.
Pre-Employment Medical Examinations
A pre-employment medical examination can be a useful part of pre-employment procedures for positions that require certain physical attributes.
References must be checked to ensure that information provided by a potential employee regarding their qualifications and experience is correct.
- Making an Offer of Employment
- A Letter of Offer
- Fair Work Information Statement
Under the National Employment Standards (NES), all employers covered by the national workplace relations system have an obligation to give each new employee a Fair Work Information Statement before, or as soon as possible after, the employee starts employment.
As an employer, you must provide a safe workplace for your employees and identify risks to health and safety. This is one of your basic obligations to your employees. Your employees must take reasonable care and cooperate with you to ensure a safe workplace.
The Occupational Health and Safety Act 2004
The Occupation Health and Safety Act 2004 (The OH&S Act) requires that employers take every reasonable action and work proactively to ensure health and safety in their workplace. Under the OH&S Act, your employees have a duty to take reasonable care in performing their duties, as well as a duty to cooperate with you by following OH&S policies and helping to identify hazards in the workplace.
Your Legal Obligations
You have a duty to protect the health and safety of your employees while at work by providing and maintaining a working environment that is safe and without risks to health. Risks must be eliminated or reduced as far as is practicable to do so.
What is reasonably practicable in a given situation will depend on the nature of the risk the hazard presents, and the control measures available.
Notifying of Incidents
You are required to notify Worksafe immediately after an incident that results in death or serious injury in the workplace.
You must also notify WorkSafe of incidents that expose a person in the immediate vicinity to an immediate risk to their health or safety. Within 48 hours of notification, you must also give a written record of the notifiable incident to WorkSafe and retain a copy of this record for five years.
Where a notifiable incident had occurred, the site of the incident must not be disturbed until advised by a WorkSafe Inspector. This does not apply where a site has been disturbed to protect the health and safety of a person, to aid an injured person or to take essential action to make the site safe.
Trainers and employees in Victoria are covered by federal legislation. The main award which sets out the basic employment conditions of stable employees, apprentice jockeys and track riders is the Horse and Greyhound Training Award 2010.
In addition to federal laws, there are Victorian laws which apply to your business and employees. They set out your obligations and responsibilities under occupational health and safety (OH&S) laws, long service leave and equal opportunity.
Horse and Greyhound Training Award, 2010
Details the minimum standards and conditions you must provide your employees with.
Common Law Contracts and Workplace Agreements
The National Employment Standards – 10 Minimum Employment Conditions