28 November 2023
Leading up to the Christmas-New Year period, employers hold various end-of-year functions for their employees. Such functions, even if they are after hours and off-site, are still “in the course of employment.” This means employers may be held vicariously liable for conduct arising from the function.
New legislation has been introduced which amended the Sex Discrimination Act 1984 (Cth) to create a positive duty for employers to focus on prevention of workplace sexual harassment and discrimination. This requires employers to implement proactive strategies aimed at preventing workplace sexual harassment, sex-based discrimination or harassment and conduct in the workplace or in connection to work. This is different to the previous requirements which were focused on the responses to harassment once it had occurred.
This is an important consideration for all end of year events as powers for the Human Rights Commission to enforce compliance will have come into force in December 2023.
Accordingly, and to fulfil their duty of care to protect the health, safety, and welfare of employees at the relevant function, employers should:
• Review or establish policies such as work health and safety, discrimination, bullying, sexual harassment, drug and alcohol, social media, and procedures for dispute resolution. It is best to confirm to employees beforehand that such policies still apply at the function and remind them of their nature.
• Consider these policies in light of the new positive duty to take action to prevent and eliminate work related sex-based harassment or discrimination.
• Set forth when the function starts and finishes, such that any continued celebrations past a certain time are ‘unofficial,’ extending beyond the end-of-year function and its scope.
• Establish that all work health and safety obligations are complied with, as regards the facility in which the function is held.
• Ensure responsible service of alcohol, if applicable, and that nobody becomes intoxicated. Provide food, water, and other non-alcoholic options.
• Select an appropriate venue for the end-of-year function, which all employees shall enjoy and feel comfortable in.
• Provide employees with free travel to and from the end-of-year function. Alternatively, select a location from which employees can easily travel to and from the function: by bus, train, taxi, uber, or otherwise.
• Appoint a manager or supervisor to stay alcohol-free, monitor and, if necessary, correct inappropriate behaviour at the function.
The following are public holidays in Western Australia:
• 25 December – Christmas Day
• 26 December – Boxing Day
• 1 January – New Year’s Day
Under State and Federal legislation, as a starting position, an employee scheduled to perform ordinary hours of work on these days is entitled to a paid absence from work. When an employee is required to work on a public holiday, he must be paid in accordance with the applicable Award or Enterprise Agreement.
Disclaimer: This summary is a guide only and is not legal advice. For more information, call ECA Legal on (08) 6241 6129 or email email@example.com.