Legislative Update: Equal Opportunity (Unlawful Acts at Workplace) Amendment Bill 2021

The Equal Opportunity (Unlawful Acts at Workplace) Amendment Bill 2021 (the Bill) proposes amendments to the Equal Opportunity Act 1984 (SA) (the EO Act) with a focus on workplace behaviour and the liability of employers.

First introduced on 12 May 2021, the Bill has been progressed following the second reading debates on 27 October 2021. The Bill has now been referred to the Committee for further consideration and potential amendments.

The crux of the Bill is the proposed introduction of section 90A in the EO Act which seeks to establish the prevention of unlawful acts at workplaces as follows:

‘The person with management or control of a workplace (within the meaning of section 20(1) of the Work Health and Safety Act 2012) must take reasonable steps to prevent, as far as possible, prescribed unlawful acts at the workplace.’

A ‘person with management or control’ is defined in the Work Health and Safety Act 2012 (SA) (the WHS Act) as ‘a person conducting a business or undertaking to the extent that the business or undertaking involved the management or control, in whole or in part…’ Pursuant to the WHS Act, a ‘person’ conducting a business or undertaking may be an individual or an organisation. This includes but is not limited to a business, partnership, local council, school, or not-for-profit organisation.

A ‘prescribed unlawful act’ is defined as:

‘(a) An act of victimisation within the meaning of section 86 of the EO Act; or

(b) Sexual harassment within the meaning of section 87 of the EO Act; or

(c) An act of discrimination rendered unlawful under the EO Act.’

Discrimination under the EO Act includes discrimination on the grounds of sex, sexual orientation or gender identity, race, disability and age.

Therefore, it will be unlawful for a person with management and control of a workplace to fail to take reasonable steps to prevent prescribed unlawful acts at the workplace. An alleged contravention of this proposed provision could lead to an investigation by the Commissioner for Equal Opportunity and/or proceedings in the South Australian Civil and Administrative Tribunal or South Australian Employment Tribunal.

It should also be noted that a ‘workplace’ has the same meaning under the WHS Act which is defined as ‘a place where work is carried out for a business or undertaking and includes any place a worker goes, or is likely to be while at work.’ Therefore, the obligation extends to any place a worker attends where there is a sufficient nexus to work, and is not limited to the employer’s physical workplace.

The proposed amendments to the EO Act introduce a significant change to the responsibilities and liability of employers with the focus now being on prevention of discrimination, victimisation and sexual harassment in the workplace as opposed to merely having a reactive focus. Both preventing and responding to unlawful acts are now considered to be equally important.

While the Bill has not yet been introduced as law and may be subject to further amendments, Norman Waterhouse will continue to update its clients as it progresses through Parliament.

For more information in relation to this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au, Virginia Liu on +61 8 8210 1279 or vliu@normans.com.au or Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au.