New complaints handling processes in the federal anti-discrimination jurisdiction

David Weiler, Associate

The Parliamentary Joint Committee on Human Rights’ enquiry into freedom of speech in Australia did not reach a consensus on any reforms to s18C of the Racial Discrimination Act 1975 (Cth). However it did recommend a range of procedural changes to the Australian Human Rights Commission’s processes for handling complaints, aimed at raising the threshold for complaints and strengthening the powers of the Commission to deal with unmeritorious complaints. Many of these recommendations have now been enacted through amendments to the Australian Human Rights Commission Act 1986 (Cth).

The threshold for complaints

The amendments increase the threshold for complaints by requiring complainants to detail, as fully as practicable, the alleged acts, omissions and practices that form the basis of the alleged unlawful discrimination. The intent of the new requirement is that complaints should contain more than bare allegations of unlawful discrimination and should sufficiently substantiate why the alleged conduct constitutes unlawful discrimination. The higher threshold gives the Commission greater capacity to make an initial assessment of whether the complaint has any merit at the time it is lodged, and to dismiss those complaints that are unmeritorious before the complaints handling process is instituted.

Termination of complaints

Another significant aspect of these amendments is the circumstances in which the Commission is required, or has a discretion, to terminate complaints. The new category of circumstances in which it is mandatory for the Commission to terminate a complaint includes:

  • the complaint is trivial, vexatious, misconceived or lacking in substance;
  • there is no reasonable prospect of the matter being settled by conciliation; or
  • if the President is satisfied that there would be no reasonable prospect that the Federal Court or the Federal Circuit Court would be satisfied that the alleged acts, omissions or practices are unlawful discrimination

In addition, the time frame for the discretionary termination of complaints has been reduced from 12 months to 6 months.Where a complaint is terminated, the President must notify the complainants in writing of the termination and of the reasons for the termination, and this notification must include a statement explaining that the Federal Court and the Federal Circuit Court can award costs in proceedings.

Leave of the Court

The amendments have also added a new requirement for leave of the Court to be granted for applications filed in the Federal Court or Federal Circuit Court alleging unlawful discrimination following the termination of complaints in certain circumstances. Leave is not required where the President of the Commission considers the subject matter of the complaint involves an issue of public importance that should be dealt with by the Federal Court or the Federal Circuit Court, or where the complaint was terminated on the basis that there was no reasonable prospect of the matter being settled by conciliation.

Please contact a member of the PCS team if you require assistance in working through these new processes.

“Don’t forget the public” – breadth of non-worker WHS duty

Ben Urry, Associate Director

When reviewing health and safety practices, businesses need to adopt a long-term view of the potential impact on non-workers. A business should not assume that their obligation to protect customers, visitors or members of the public is limited only to the particular point in time when the work was actually being undertaken.

Risks to health and safety may not manifest for days, weeks or even months after the work is performed, and if the work has the requisite causal connection to the creation of the risk, then a business may be exposed to criminally liability.

In a recent decision handed down by the Industrial Relations Court of South Australia, it was held that work, health and safety (“WHS”) provisions in the Work Health and Safety Act 2012 (SA) in relation to a “non-worker” (including the public at large) were not limited to risks in the workplace at the time the work was being undertaken.

In September 2014 a young girl was killed at the Royal Adelaide Show when she was thrown from an amusement ride. The ride had been certified as safe to use (by Safe is Safe Pty Ltd) 12 days prior to the accident.

Safe is Safe and its officer, Mr Hamish Munro (the “Defendants”), were subsequently charged under the Work Health and Safety Act 2012 (SA). The Defendants argued that the obligation to ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk only existed while the work was being carried out (ie the period in which the inspection and issuing of the certificate occurred) and did not extend to the consequences or product of the work.

In rejecting these arguments, the Court held that it was the creation of the risk that constituted the offence, with the “risk” in this context simply meaning the possibility of the health and safety of the nominated class of persons being compromised.

The case is a timely reminder to businesses that the mere passage of time since the work was undertaken does not lessen the possibility of liability for any risks created.

How to minimise legal risks associated with labour contracting

Sam Cahill, Associate

Labour contracting can give rise to specific legal risks for a business that uses such an arrangement where non-compliance with employment obligations occurs. The Fair Work Ombudsman (“FWO”) has published a new guide that suggests certain steps businesses can take to minimize the legal risks associated with labour contracting.

What is labour contracting?

Labour contracting can be done in two different ways. The first way, which is commonly known as “labour hire”, is where a business (the “host”) engages a labour hire agency to provide workers – who are employed and paid by the labour hire agency – to perform work under the direction and control of the host business. The second type, which is often referred to as “outsourcing”, is where a business (the “principal”) engages a contractor to perform a certain task or function instead of having this task or function performed by its own employees. Under this arrangement, the work may be performed by the contractor’s employees or sub-contracted to another contractor business.

Legal Risks

The labour provider (often referred to as the contractor) – being the employer of the relevant workers – owes various legal obligations to its employees under the Fair Work Act 2009 (Cth) (“FW Act”) and any relevant Modern Award or Enterprise Agreement.

The host business is not immune from liability if a breach occurs. The FW Act provides that any party – including an individual or another business – who is “involved” in a breach of the FW Act is also taken to have committed the breach. This concept is known as “accessorial liability”. In the context of labour contracting, accessorial liability means that a host or principal business can be held liable for the failure of the labour provider to comply with its legal obligations.

Steps recommended by the FWO

In recent years, the FWO has sought to crack down on compliance issues arising with respect to labour contracting and other similar arrangements, and has relied on the accessorial liability provisions under the FW Act to establish liability on the part of a number of businesses.
Now, in a bid to improve understanding of these issues within the business community, the FWO has published its own guidance material on labour contracting. In short, the FWO suggests that a host or principal should take the following steps to minimise the legal risks associated with labour contracting and accessorial liability:

  • understand the pay and conditions that apply to the workers;
  • understand the workplace practices of a potential contractor (for example asking for information as part of the tender process);
  • ensure that the contract price negotiated is adequate to cover the wages and other entitlements for the relevant workers (keeping in mind that the contractor will also have overhead costs and will generally need to make a profit);
  • seek an undertaking from the contractor that it will comply with the FW Act (this can be done as part of the written agreement); and
  • require the contractor to notify or seek approval prior to engaging any sub-contractors.

Please contact us if you require any assistance regarding your labour contracting arrangements, including the implementation of the above recommendations.