Does the state or federal law override?
Federal law
How Can Legal Compliance Be Strategic?
- Avoid the expense of lawsuits
- Avoid the negative public relations that comes with litigation
- Allows companies to capitalize on the strengths of diversity and perform better because they focus more on performance and merit
- Be better able to hire quality people from all segments of the labour force
- Relates to ethical employment practices
Why do employment laws exist?
- Because the employer typically has disproportionate power in the employment relationship
- Helps to promote fairness and consistent treatment among different employees by prohibiting unfair discrimination in employment and providing equal employment opportunity for everyone
- Discrimination in employment is any practice that makes distinctions between individuals or groups so as to disadvantage some and advantage others based on reasons other than merit
- The Human Rights & Equal Opportunity Commission has special functions concerning EEO in employment
Outline the benefits of ‘Complying With Employment Laws’
- Enhances hiring quality
- Enhances the firm’s reputation and image as an employer
- Promotes fairness perceptions among job candidates – can encourage applicants to apply
- Reduces spillover effects (for example, rejected applicants not becoming customers or discouraging others from applying for jobs)
- Reinforces an ethical culture
- Enhances organizational performance by ensuring that people are hired or not hired based on merit and their qualifications, reducing biases
- Promotes diversity, which can enhance an organization’s ability to appeal to a broader customer base
Explain the ‘Types of Employment Relationships’
Employee: someone hired by another person or business for a wage or fixed payment in exchange for personal services, and who does not provide the services as part of an independent business
Independent contractor: performs services wherein the employer controls or directs only the result of the work
Contingent workers: any job in which an individual does not have a contract for full-time, permanent part-time, long-term employment
- Temporary workers, including seasonal workers
- Casual workers
What do ‘Labour Unions’ do?
Legally representing workers, organizing employees and negotiating the terms and conditions of union members’ employment
The conditions of employment are usually contained in a contract such as a collective bargaining agreement or a collective employment agreement
Outline ‘Equal Employment Opportunities, Affirmative Action and Quotas’
Equal employment opportunity: employment practices are designed and used in a “facially neutral” manner
Affirmative action (AA): the proactive effort to eliminate discrimination and its effects, and to ensure non-discriminatory results in employment practices in the future. An affirmative action plan describes in detail the actions to be taken, procedures to be followed, and standards to be adhered to, when it comes to establishing an affirmative action program. AA is designed to bring members of disadvantaged groups up to the same level as others and enable them to compete on a level playing field
Staffing Quotas: establish specific requirements that certain percentages of disadvantaged groups be hired to equalize their proportional representation of under-represented groups in the company’s workforce with their proportions in the organization’s relevant labor market – not usually used in Australia
Explain ‘Equal Opportunity’
Equal Opportunity (EO) in a workplace context means that all employees have equal access to the opportunities that are available at work. This means that all employees are treated with fairness and respect in that they are not subject to discrimination or harassment in the workplace. Some groups specifically covered by the legislation include women and older workers who may experience discrimination on account of gender and/or age - Equal Opportunity is an outcome, not just a process.
Explain the ‘EEO Best Practices Definition’
A best practice in staffing:
- Complies with the law,
- Promotes equal employment opportunity,
- Addresses one or more barriers that adversely affect equal employment opportunity,
- Manifests management commitment and accountability,
- Ensures management and employee communication,
- Produces noteworthy results, and
- Does not cause or result in unfairness.
Outline the ‘Key Elements That Support Successful EEO Programs (SPLENDID)’
Study – know the laws and standards, remove EEO barriers, and seek assistance from the HR Commission, professional consultants, associations or groups
Plan – know the relevant workforce and demographics, define the problem(s), propose solutions, and develop strategies for achieving them.
Lead – have all levels of management champion the cause and provide leadership for EEO implementation at all organizational levels
Encourage – link pay and performance for how employees interact, support and respect each other.
Notice – monitor the impact of EEO practices; ensure that unfairness does not occur as a result of a corrective strategy.
Discuss – communicate and reinforce the message that diversity is a business asset.
Include – bring all employees and groups into the analysis, planning, and implementation process.
Dedicate – assign needed resources and stay persistent; investment in EEO may take a little while to pay off.
Outline some ‘Specific Barriers to EEO’ in terms of ‘recruiting’
Barriers to recruiting:
- Failing to advertise widely in order to attract diverse applicants
- Recruitment practices that overlook or fail to seek all qualified individuals
- An over-reliance on informal networks for recruitment
- A lack of effective formal systems for recruitment and selection
Outline some ‘Specific Barriers to EEO’ in terms of ‘barriers to advancement and promotion’
Barriers to advancement and promotion can include:
- Deficient feedback, performance evaluation, and promotion processes of employees
- Little or no access to informal networks of communication by employees of protected classes
- Different standards of performance used for different classes of employees
- Lack of equal access to assignments that provide key career experiences, visibility, and interaction with senior managers
- EEO HR personnel not included in the recruitment process for higher job levels
Outline some ‘Specific Barriers to EEO’ in regards to ‘terms and conditions’
Barriers in terms and conditions:
- Unequal pay
- Counterproductive behavior and harassment in the workplace
- Employer policies that are not family-friendly
- Inflexible working hours and working conditions
- Failing to provide reasonable accommodation to qualified individuals with disabilities – including ease of access to work areas
Outline some ‘Specific Barriers to EEO’ in terms of ‘barriers in termination and downsizing’
Barriers in termination and downsizing:
- Unfairness of standards used in making layoff decisions; differences in benefits given to different types of employees
- Inadequate planning for the layoff
- Lack of adequate incentives to encourage voluntary separations
- Lack of communication between employers and employees
- Failure to provide counselling, job placement assistance, and training to laid-off employees
How can ‘discrimination’ take place?
- Less favourable treatment
- Making unfair assumptions about the characteristics of a person
- Setting unreasonable conditions or requirements
- Indirect or systemic discrimination
Explain ‘indirect discrimination’
- Results from practices which appear to be neutral but which results in a person or group being adversely affected
- Test of indirect discrimination will be whether the practices were relevant or necessary to the job or circumstances
- All EEO Acts in Australia cover indirect discrimination
What can be done to ensure ‘recruitment and selection procedures are not discriminatory’?
- Employers need to examine their recruitment and selection policies and procedures to ensure they are not discriminatory
- Guidelines on recruitment and selection issues cover advertising vacancies, targeting recruitment towards specific groups, employment application forms, appropriate wording in job descriptions and selection criteria, interview processes, privacy and any exemptions from EEO legislation coverage
What does the ‘Equal Employment Opportunity for Women in the Workplace Act 1999’ protect?
- Seeks to promote merit in employment
- Aims to encourage consultation between employers and employees on EEO and discrimination issues
- Requires all private sector employers of 100 or more people and all higher education institutions to establish EEO programs to remove the barriers to women and to report annually on the progress of their programs to the Equal Opportunity for Women in the Workplace Agency
- Applies specifically to women to remove barriers to their employment so they have equal employment opportunities to men
- Seeks to implement plans and systems that prevent discrimination from occurring
Outline the ‘Implications for recruitment & selection’
- Recruiters must understand EEO and non-discriminatory practices (may need training)
- Problem areas can be identified, analysed and addressed appropriately so that recruitment and selection practices can work effectively
- Job descriptions and other job documentation including job advertisements do not discriminate directly or indirectly
- All internal sources of recruitment must be accessible to all employees
- Liaison with educational institutions, in terms of strategies designed to increase the supply of women employees
- Application forms and interviews use uniform questions concentrating on job requirements
- Assumptions made about women by those involved in the selection process – staffing, line managers – must be examined regarding length of service, family responsibilities, working with males and questions about these issues should not be raised in selection interviews
- Questions must relate to the job only and all applicants have to received equal treatment
- Evaluation of recruitment and selection practices should include the principles of EEO
- Privacy issues have to be considered during the recruitment and selection process
What does ‘The Privacy Act 1988’ protect?
- Recruiters and selectors have to be aware of the requirements and implications of the Privacy Act and employers should develop and implement a specific privacy policy for their organisation
- Generally employment contracts are not covered by the Act as there is an exemption from it for ‘employee records’
- Employers should consider adding a clause in employment contracts that states that the employee acknowledges the he/she has read, understood and agrees to abide by the terms of the organisation’s privacy policy
What is the ‘Provision for employment of non-citizens in Australia’
- People who enter Australia can only take up work if their visa entitles them to do so
- Employers should make themselves aware of the different types of visas available and their implications for recruitment and selection
- It is a criminal offence for a person to knowingly and recklessly allow a non-citizen to work without the legal right to do so
- Inspectors from the DIAC have to power to enter and search a workplace to check the visa status of employees without warning which can have serious implications for employers who do not comply with the requirements of the Act
Outline the rules for ‘Working with Children’
- All states and territories have legislation in force that requires specific child-related occupations such as teachers and child-care workers to be screened for criminal offences. This may require recruiters and selectors to require that a police check report is provided by applicants
- Generally in employment “children” refers to people under the age of 15 although it can also apply to children of “school age” which in most states is 16 years of age
- Children under the age of 15 are generally prohibited from working full time
- The minimum age for employment is 13 years although children under this age are permitted to work in family businesses or in the entertainment industry
- Children are normally only permitted to carry out light work, which is not likely to be detrimental to the child’s health, safety or moral and material welfare and does not prejudice the child’s attendance at school or their capacity to benefit from instruction
- Children are paid at the appropriate junior wage rate
What’s unlawful termination?
It is illegal for an employer to dismiss an employee for a number of reasons. These reasons include:
- a person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it’s based on the inherent requirements of the job)
- temporary absence from work because of illness or injury
- trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours
- non-membership of a trade union
- seeking office as, or acting as, a representative of employees
- being absent from work during maternity leave or other parental leave
- temporary absence from work to engage in a voluntary emergency management activity
- filing a complaint, or participating in proceedings against an employer
Define ‘unlawful or discriminatory employment practices’
Employment practices that unfairly discriminate against people with characteristics protected by law
