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The Human Rights Commission may take action against employers who fail to actively eliminate sexual harassment, discrimination and victimisation in the workplace, as part of a positive duty reform. While the reform itself was introduced under the Sex Discrimination Act in 2022, a change was put in place last December - and every employer, including those in the agricultural sector, is affected. This change has provided the commission with new powers to investigate and enforce compliance with positive duty and investigate organisations or businesses where it "reasonably suspects" non-compliance. What does this mean for shearing contractors, sheep producers and other primary producers? Speaking at the WA Shearing Industry Association (WASIA) general meeting last month, Bailiwick Legal solicitor Matilda Lloyd said the enforcement power involved inquiries and investigations similar to WorkSafe. She said a complaint did not have to be made for an inspector from the commission to visit and look over a workplace, and see if there is any kind of sexual harassment occurring. "The commission looks at policies and procedures, and essentially you need to be able to demonstrate that you're compliant with this positive duty. "When you think about it in the context of a shearing shed, it is the safety checklist you have in place for when people enter the shed. "Those are the things you need to consider with sexual harassment as well." Ms Lloyd said the commissioner never had the power to conduct an investigation before and, as such, practically how it was going to work was an unknown. "We don't know whether they're going to be coming out and doing regular inspections, what those inspections are going to look like in terms of time or how thorough they are going to be, " sh e said. "They need to be thought of the same way as a WorkSafe investigation, whereby it could happen at any point whether a complaint is made or not. "Investigators will expect employers to show that they are actively trying to eliminate this form of unlawful conduct." If an inquiry occurs, what will happen? If an employer wasn't taking the correct measures to stop sexual harassment, discrimination and victimisation from occurring, they could be issued a compliance notice. Ms Lloyd said if the notice wasn't adhered to and an inspector returned, they could apply to the Federal Court to have that positive duty enforced. What is positive duty? Ms Lloyd said a positive duty was a legal obligation on an employer or person conducting a business or undertaking to take reasonable and proportionate measures to eliminate unlawful behaviours in the context of work, workplaces and working relationships. In the case of shearing contractors, sheep producers and other primary producers, she said that obligation was on the employer and applied to all staff, workers, contractors, customers and people entering, for example, a shearing shed. She said the obligation was "very broad" and applied right across the board. "Enforcing positive duty is pretty straightforward in terms of the employer, but when we look at the other parties involved it is extensive, " Ms Lloyd said. "When we are talking about sexual harassment in the workplace we are talking in the shed and in a vehicle on the way to work or another shed. "It is also offsite, so if you are having work drinks at the quarters or wherever afterwards - that's also a workplace within the definitions of the act. "The obligation applies across the board in all of these circumstances. "And also applies to visitors, so if you have farmers and they bring their wives, it is anyone coming into that shed or environment." In the context of positive duty, what do contractors need to do? Firstly, employers need to understand what sexual harassment, sex-based harassment, discrimination and victimisation is. Ms Lloyd said employers were responsible for leading their team, so it was important to understand what the laws were and how they affected not only them, but their employees. "When we talk about sexual harassment we talk about unwelcome conduct that is of a sexual nature or requests for sexual favours, touching, requesting dates and so forth," she said. "Whereas sex-based harassment is harassment that is targeted at a particular sex. "This could be making sexist comments about a woman because she's a woman or making sexist comments about a man because he's a man. "Then victimisation is about targeting someone because they've made a complaint." Ms Lloyd said a conversation then needed to be had to educate employees, whether that be face-to-face, by Whatsapp or having it displayed in the shed. She said there were resources and guidelines available through the Human Rights Commission, which helped with this. "Have that conversation - as an employer understand what sexual harassment is but then talk to your employees and be serious about educating your employees, " Ms Lloyd said. "It is about actually having that conversation and then thinking about what material can be given to them. "The whole point is to make it easy, so people understand. "Then it goes into training and support - is there someone in your team people can talk to?" The seven standards The commission has released guidelines for complying with the positive duty under the Sex Discrimination Act 1984. The guidelines are centred around seven standards - leadership, culture, knowledge, risk management, support, reporting and response, and monitoring, evaluation and transparency. Examples of practical actions that organisations or businesses can take to meet each of the standards are set out in the guidelines. Ms Lloyd said, as each business is different, it depended on how big a team was, what was going to be practical and cost-effective in the workplace. She said the commission would look at the different standards if there was an investigation or inquiry. How often do employers need to talk to their team about this? Ms Lloyd said it should be looked at similarly to safety or work related issues, whether that be a toolbox or regular meeting once a week or every couple of days. She said if a contractor was starting a new job or visiting a place they hadn't been to before, it was about having that conversation upon arrival. "When everyone's preparing for their first break, sit down and have a chat about general safety as well, " Ms Lloyd said. "That's the first step, and then follow it up a month later when you start a new shed. "It is about consistently and actively taking measures to create a safe space. "It seems obvious that once you've gone through your checklist you then talk to the people coming into that environment, who are your workers, and alert them to what you have found. "Similarly, with positive duty, a checklist is proof that you are doing the right thing if you are audited." Does insurance cover sexual discrimination cases? Having insurance does not diminish positive duty, it just safeguards employers against potential damage and loss against their business if they are sued. Ms Lloyd said sexual discrimination cases, which travelled through the Federal Court, were not cheap and often have adverse outcomes from an award of damages perspective. "If we talk about Work Health and Safety, as you know, that is a serious issue you have to take onboard and consider, " she said, "And that's the way I think employers need to frame their conduct when talking about and implementing measures to prevent sexual harassment, discrimination and victimisation." Is an employer covered if they have put everything in place, but those rules are still broken? Ms Lloyd said an employer would be protected if they have been able to eliminate as much as they can with the resources available to them. She said it was important to remember sexual harassment and discrimination is unlawful conduct. "In terms of positive duty, by taking all reasonable steps and measures given the resources available to you, you will be able to mount a solid defence against any claim. "If you've done your duty positively and it can be demonstrated that you've exercised your role in appropriate fashion, then that will be solid defence." For more information on the positive duty reform and seven standards, go to humanrights.gov.au

Farm Weekly - Advice to avoid contract dramas

On 1 July 2023 the Aboriginal Cultural Heritage Act 2021 (2021 Act) came into effect following five years of alleged stakeholder consultation and drafting. The new Act replaced the Aboriginal Heritage Act 1972 (1972 Act), which was deemed to be completely inadequate at providing recognition and protection for cultural heritage by the Joint Standing Committee on Northern Australia in A Way Forward, the Final report into the destruction of Indigenous heritage sites. To improve these deficiencies the section 18 consent process under the 1972 Act was replaced with a four-tier management system for Aboriginal cultural heritage which required proponents to undertake a due diligence assessment prior to undertaking activities, including where ground was to be disturbed, for the purpose of determining whether there was any Aboriginal cultural heritage or risk of harm being caused to Aboriginal cultural heritage by those activities. The four-tier system was also accompanied by a new definition of Aboriginal cultural heritage, a new Directory of information related to Aboriginal cultural heritage as well as harsher fines, stop activity orders, prohibition orders and remediation orders which were introduced as new compliance measures to prevent and remedy harm. The objects of the 2021 Act were to recognise, protect, conserve, and preserve Aboriginal cultural heritage and to manage activities that may harm Aboriginal cultural heritage in a manner that provides clarity, confidence and certainty. However, in the weeks up to and then following 1 July 2023, substantial concerns and uncertainty were raised about the 2021 Act (and Regulations) together with a good dose of misinformation and in particular the impact that the new regime would have on freehold landowners and proponents who wanted to undertake their usual and normal (farming) activities on blocks of land greater than 1100m2. During this period Matilda Lloyd and Phil Brunner attended many seminars, in conjunction with WAFarmers, to explain to the agricultural industry and the broader community the new laws. We attended at WAFarmers Zone meetings and grower organised information sessions in Karridale, Busselton, Esperance, Katanning and Perth. Information was also provided in online workshops and information sessions for grower groups and agricultural consultants. On 8 August 2023 the Premier, Roger Cook, announced that the 2021 Act (and Regulations) would be repealed and that the 1972 Act would be reintroduced with simple and effective amendments. The announcement is welcome news however the Government’s rhetoric is that even the 1972 Act applies to freehold farmland. There is more work to be done to exclude freehold (improved) farmland from the operation of the 1972 Act. Currently the 2021 Act remains in force and will be repealed once the Bill for the amended 1972 Act is passed by both houses of Parliament. Bailiwick Legal extends its thanks to WAFarmers and the PGA for their efforts over the last two months. We will continue to work with WAFarmers and farmers to navigate the amended 1972 Act and press for further changes to the Aboriginal cultural heritage laws in WA. If you would like more information about Aboriginal cultural heritage or how these changes may affect you and your business, please contact Bailiwick Legal on (08) 9321 5451 or by email at office@bailiwicklegal.com.au . By Matilda Lloyd (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

On the 1 July 2023, the new Aboriginal Cultural Heritage Act 2021 (WA) came into force. The new Act makes extensive amendments to the existing Aboriginal Heritage Act 1972, including the introduction of the four-tier activity approval process, the due diligence assessment (DDA), and the Local Aboriginal Cultural Heritage Services (LACHS). Under the new legislation greater onus is placed on landowners and proponents in WA to undertake a DDA to identify Aboriginal Cultural Heritage (ACH) and to avoid and minimise any harm to ACH. Below is a summary of the key changes landowners and proponents should be aware of. What is Aboriginal Cultural Heritage? Aboriginal Cultural Heritage (ACH) means the tangible and intangible elements that are important to the Aboriginal people of the State. ACH includes an Aboriginal Place, an Aboriginal object, a cultural landscape and Aboriginal ancestral remains. Waterways Aboriginal Cultural Heritage may be present on, in or surrounding the waterways on your property. If a landowner or proponent intends to undertake ground disturbing activities that impact a waterway, then they will be required to undertake a due diligence assessment. For the purposes of the Act, Regulations and Guidelines, a waterway includes the following: (a) a river, creek, brook or other naturally flowing stream of water, whether or not it flows permanently; (b) a lake, salt lake, claypan, lagoon, marsh or swamp; (c) a floodplain, estuary or inlet; (d) an artificial waterway as defined in the Planning and Development Act 2005 section 4(1). Activity Tiers Under the Act, a four-tier approval process has been introduced for activities that may cause harm to ACH. The four-tier approval process is applicable to landowners and proponents, who are intending to carry out ground disturbing activities that may harm ACH. The four activities include exempt, tier 1, tier 2 and tier 3 activities. Due Diligence Assessment The landowners of exempt, tier 1, tier 2 and tier 3 activities will all be required to undertake a search of the ACH Directory to determine if there is ACH or a Protected Area registered on their land. Landowners and proponents wishing to undertake tier one, two or three activities will then be required to undertake a due diligence assessment to determine if their activities will cause a risk of harm to ACH. ACH Directory The Directory is a tool that will assist landowners and proponents with undertaking a DDA. The Directory contains prescribed information about ACH that is located throughout the State. This includes information about ACH previously recorded on the Register of Aboriginal Sites throughout the administration of the Aboriginal Heritage Act 1972, as well as records of new ACH as they are submitted. LACHS LACHS have been introduced under the new legislation to assist landowners and proponents during a DDA. A person or entity with comprehensive knowledge of the local Aboriginal community in an area, of the State, such as a native title representative body, can apply to be designated as the LACHS for that area. Once appointed a LACHS is responsible for providing advice to landowners and proponents about ACH, engaging with proponents and other local knowledge holders and facilitating and making ACH management plans, amongst other things. A proponent intending to carry out a Tier 2 or Tier 3 activity that is the subject of a Plan will be required to consult with the LACHS for their area. Permits If a tier 2 activity cannot be carried out so as to avoid harm to ACH, then the proponent must make an application to the ACH Council to obtain a Permit. Similarly, if a tier 3 activity cannot be carried out so as to avoid harm to ACH then the proponent will be required to develop an ACH Management Plan with each interested Aboriginal party. Stop Activity and Prohibition Orders If a landowner or proponent is carrying out an approved tier 2 or tier 3 activity and ACH is being harmed or there is an imminent risk of harm being caused to ACH then the Minister for Aboriginal Affairs, may give a stop activity order to a person to stop the activity. The Minister also has the power, upon the recommendation of the ACH Council, to give a prohibition order to a person carrying out a tier 2 or tier 3 activity, if harm or imminent risk of harm to ACH is caused by their activity. If ACH has been harmed the Minister may, upon the recommendation of the ACH Council, issue a remediation order. If you would like more information about the Act or Aboriginal cultural heritage in general, please contact Bailiwick Legal on (08) 9321 5451 or by email at office@bailiwicklegal.com.au. By Matilda Lloyd (Solicitor) For further information about our legal services, please visit our website: https://www.bailiwicklegal.com.au/ The above information is a summary and overview of the matters discussed. This publication does not constitute legal advice and you should seek legal or other professional advice before acting or relying on any of the content.

Find out what's coming up, what's been happening and legal insights on current topics of interest in our May 2023 newsletter .

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The Lawyer Network is the next generation for finding a specialist lawyer for global business requirements. When choosing a law firm, most businesses and their directors will know qualified law firms in their domestic markets, but have little knowledge of the best firms outside of their own chosen jurisdiction. The Lawyer Network identifies practice area expertise and the jurisdiction Industry specialists across the globe to bring the best of each sector and location to the client. Bailiwick Legal is the only specialist Agribusiness law firm in Australia to have recieved this honor.

We don't quite know how this year managed to escape so quickly! It has been a busy year for Bailiwick Legal - find out what we have been up to in our December newsletter - the latest and last one for 2022!