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Where am I now? Lawlink > Anti-Discrimination Board > Publications > Workplace discrimination - how union reps can help - Equal Time, May 2003
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Workplace discrimination - how union reps can help - Equal Time, May 2003
Trade unions can play an important role in assisting their members to combat discrimination and harassment in the workplace. They can also be held responsible if a union representative aids or abets discrimination or harassment, or fails to take action to prevent it. It is therefore very important that union representatives are fully informed about their responsibilities under discrimination law.
In general, the employer is liable for any discrimination or harassment that occurs in their workplace, unless they can show that they took ‘all reasonable steps’ to prevent it from occurring. This is likely to include at least the following:
- policies that clearly explain discrimination and harassment and the rights and responsibilities of all staff;
- a grievance procedure for discrimination and harassment complaints that is properly and fairly followed; and
- regular explanation of, and preferably face-to-face training in, these policies and procedures for everyone at their workplace.
Each of the anti-discrimination laws has a section that allows unions to be made legally liable if anyone representing the union, such as an organiser or delegate, causes, permits, aids or abets discrimination or harassment. This could occur if a union representative fails to take action when a member is being harassed or discriminated against, or if the union does not allow management to change a discriminatory policy or practice.
For example, in the case of Horne and McIntosh v Press Clough Joint Venture and the Metal and Engineering Workers Union (WA Equal Opportunity Tribunal 1994), the union ignored the complainants’ complaints about explicit posters and verbal abuse. When the women began taking the posters down themselves, the shop steward told them they could be blacklisted and would get no support from the union.
Both the employer and the union were found to have discriminated against the complainants, and they were awarded a total of $92,000 in damages. The employer was ordered to pay $51,000 and the union $41,000.
The first thing union representatives must do about discrimination and harassment is to make sure their own behaviour is discrimination and harassment-free, in order to be a role model for members as well as avoiding the risk of legal liability. They must know the limits at work and in union activities, such as not engaging in any inappropriate touching, not getting involved in group baiting or harassing of someone else, and being careful about the material they put up on the walls. If they supervise other staff, they must make sure all their decisions relating to promotion, pay, training, hours of work, leave and so on are not discriminatory.
Union representatives must also give all complaints appropriate consideration, and represent all members fairly. If a union member complains about another union member, each person is entitled to the same level of help and representation from the union, regardless of the issues involved, or who is the ‘victim’ and who is the ‘offender’. It is best to make sure that each member is represented by a different union representative, and the representatives do not discuss the complaint unless asked to do so by both parties.
Another important role of union representatives is to make sure their members understand their rights and responsibilities in relation to discrimination and harassment. If they witness behaviour which may breach the Anti-Discrimination Act, they should advise the person against such behaviour and tell them that the union will not support members who act like this.
Union representatives can also assist in disseminating information about members’ rights under anti-discrimination law, for example by holding meetings, putting up posters and distributing factsheets. Although it is management’s responsibility to make sure that all workers know about their responsibilities, union representatives can encourage management to put the appropriate policies, procedures and workplace training in place. They can also explain current grievance procedures and encourage members to use them.
Union representatives can also play an important role in negotiating with the employer to make workplace awards, enterprise agreements and other workplace policies, procedures and practices discrimination and harassment-free.
Since September 2001 all NSW awards have to be reviewed every three years, but an application to remove unlawful discrimination from an industrial instrument can be made to the Industrial Relations Commission by a party to the instrument at any time. The Anti-Discrimination Board and the NSW Department of Industrial Relations have published joint guidelines which explain how to review industrial awards, negotiate changes and get the changes formally approved.
Guidelines on how to make sure that all workplace policies, procedures and practices are discrimination and harassment-free are also available from the Board. These are aimed at employers, but union representatives will also find them extremely useful. Union organisers and delegates can encourage management to act properly and speedily, and work with them to make sure that the required changes are made in a way that is fair and effective.
Union representatives are in a good position to raise issues of concern rather than waiting for management to do so. Areas to consider include:
- whether all jobs are open to both sexes and all races;
- mentoring and support programs for women in male dominated workplaces, and vice versa;
- whether there are differing pay rates for jobs at a similar level;
- making all jobs accessible to people with all types of disabilities;
- the potential of workplace design to facilitate harassment;
- making sure pregnant employees and those on parental leave are not disadvantaged;
- ensuring that those injured at work are not discriminated against;
- ensuring that promotion and training opportunities are based on merit;
- flexibility about hours of work for people with carers’ responsibilities, disabilities or religious requirements;
- the fairness of restructuring and redundancy programs; and
- affirmative action strategies to help groups of workers who have previously been disadvantaged reach the same competitive level as others.
It is also vital that union representatives do not resist management when they are trying to make the workplace a fairer place for everyone, for example by promoting on merit rather than seniority. Neither should unions oppose management if they take disciplinary action against a union member who has been harassing, discriminating against or victimising another worker.
Another crucial role for union representatives is to help members to sort out complaints at an individual or group level. This can involve:
- checking the person’s rights under all relevant laws;
- providing information about support groups;
- discussing options, giving advice and assisting them to talk directly with the person concerned, approach someone who has the power to fix the problem, and/or use any complaints/grievance procedure;
- making sure management investigates the problem quickly, fairly and confidentially;
- making sure the employee is not threatened or victimised because they made a complaint; and
- assisting them to complain to the Anti-Discrimination Board if the matter cannot be resolved.
Many important complaints and legal decisions relating to discrimination have occurred only because the union made a complaint on behalf of all or a group of its members, or provided legal representation for a member who couldn’t afford to pay for a solicitor.
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