Federal Anti-Discrimination laws set out a range of legal obligations and protections that contribute to safe and respectful workplaces. The below anti-discrimination laws make sexual harassment in the workplace unlawful and prohibit discrimination in employment on the basis of a range of protected attributes. Discrimination in employment can include single incidents of bullying on the basis of a protected attribute.

• Sex Discrimination Act 1984 (Cth): makes sexual harassment, sex-based harassment and sex discrimination in the workplace unlawful

• Age Discrimination Act 2004 (Cth):  makes discrimination on the grounds of age unlawful in relation to work 

• Disability Discrimination Act 1992 (Cth): makes discrimination against an employee on the ground of a disability unlawful

• Racial Discrimination Act 1975 (Cth): makes racial discrimination against an employee unlawful

• Australian Human Rights Commission Act 1986 (Cth): under this Act, the AHRC can investigate and resolve complaints of unlawful discrimination and harrassment in the workplace.

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The positive duty is a legal obligation introduced into the Sex Discrimination Act 1984 (Cth) in December 2022. It applies to ‘persons conducting a business or undertaking’ and ‘employers’ (as defined in the Sex Discrimination Act).

The positive duty requires employers to take ‘reasonable and proportionate
measures’ to eliminate the following behaviour as far as possible:
• discrimination on the ground of sex in a work context
• sexual harassment in connection with work
• sex-based harassment in connection with work
• conduct creating a workplace environment that is hostile on the ground of sex
• related acts of victimisation.

ALL organisations and businesses in Australia must satisfy and comply with the positive duty, regardless of their size or resources, This includes sole traders and the self-employed, as well as small, medium and large businesses, and government.

The positive duty captures behaviour engaged in by:
• employers or people running an organisation or business
• employees, workers and agents
• third parties (in some cases) such as customers, clients, patients, students, members of the public and others towards employees and workers in connection with their work. Sexual harassment and other unlawful behaviours can occur in a wide range of contexts that are not necessarily limited to the workplace, or the working hours, of the people involved.

Unlawful behaviours captured by the positive duty may occur:
• in the workplace during work hours or after hours
• during a lunch break
• when working remotely (from home or offsite)
• at staff drinks or staff functions (at work or somewhere else)
• between colleagues outside the workplace and outside work hours
• during work-related travel.

Anyone can experience unlawful behaviours, in any workplace, across all industries. Some workers, however, are more likely to be targets for certain types of unlawful behaviour than others. For example, people who are most at risk of workplace sexual harassment include women, people who identify as LGBTIQ+, young people, people with disability, Aboriginal and Torres Strait Islander peoples and culturally and racially marginalised people. Workers who are on temporary work visas or employed under casual or insecure arrangements are especially
vulnerable.

You can learn more about how to comply with the Positive Duty here:
• Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth)
• Steps to meet the Positive Duty
• What is the Positive Duty?
• The Guiding Principles: Person-centred and Trauma-informed Approaches to Safe and Respectful Workplaces
• Effective Education and Training
• Causes and Risk Factors of Sex Discrimination, Sexual Harassment and Other Unlawful Behaviours
• Information Guide on the Positive Duty under the Sex Discrimination Act 1984 (Cth)

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The Fair Work System, which includes The Fair Work Act and Fair Work Regulations 2009 (Cth) is the national system governing the relationship between employers and employees. The system provides employees with key avenues through which they are able to:

• Seek orders from the Fair Work Commission to prevent and workplace harassment or bullying

• Challenge the termination of their employment

Unlike discrimination claims under anti-discrimination legislation, if an employee alleges that they have been subjected to unlawful harassment, bullying or discrimination, the court will presume that this is the case unless the employer can prove otherwise. 

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Australian work health and safety (WHS) legislation is based on model laws that have been adopted by the Commonwealth and most State and Territory governments. The principle purpose of these laws is to protect workers from harm to their health, safety and welfare, through the minimisation and elimination of risks associated with their work. ‘Health’ in a WHS context includes both physical and psychological health. 

The laws aim to eradicate behaviour that may constitute bullying, harassment or sexual assault. Employers and workers must comply with a range of legal obligations set out by anti-discrimination, employment, fair work and WHS laws to minimise and manage risk arising from such behaviour. The vast majority of working arrangements and relationships are covered under these laws, regardless of how informal they may be. Further, there are criminal penalties that apply in instances of non-compliance with employers’ primary duties under WHS laws.

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A union’s primary function is to represent the interests of the employee, whereas, the Fair Work Ombudsman is an independent government agency. The Fair Work Ombudsman can act as a centralised point of contact, providing valuable information regarding the national workplace relations system and can investigate workplace complaints and enforce labour laws. However, as a union member, your interests will always be protected, should you need assistance.

Some of the services a union provides:

• Provide a support person to be present in meetings around possible redundancy

• Provide you with a lawyer in the event that you go to the tribunal 

• Provide advice over the phone about the particulars of your situation

• Provide advice as to whether or not a law has been broken

Strong union membership has traditionally been lacking in the hospitality sector. This fact, combined with a hugely casualised workforce, has left the industry particularly open to exploitation.

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Wondering what your union might be? Australian Unions usually offer a month free and you can find your union on their site

Below are a list of a few unions relevant to the wine industry:

https://www.hospovoice.org.au/news/wins/– Hospitality

https://unitedworkers.org.au/ – Hospitality, Farm and Winery Workers

https://raffwu.org.au/about/our-team/– Retail 

https://www.sdansw.org.au/ - Retail & Warehouse Workers

https://www.meaa.org/about-us/– Journalism 

https://www.presscouncil.org.au/about-us)- Journalism