Workplace Culture and Diversity

In Australia, companies are increasingly focused on creating diverse and inclusive workplaces. Research shows that a diverse workforce has practical advantages for businesses. Employing workers from different races, backgrounds, sexual orientations and social spheres encourages inclusion and original thinking. It enables the business to reflect and thereby better understand its clients, partners and stakeholders. Diversity also discourages discrimination and promotes equal employment opportunities.  This article looks at the legal implications of workplace culture and diversity in Australia.

Legal framework

The Fair Work Act 2009 and Fair Work Regulations 2009 create the regulatory framework for employment in Australia. The legislation establishes the National Employment Standards for employee entitlements, such as maximum weekly hours, parental leave, and flexible work arrangements. Following statutory regulations creates a positive work culture and ensures that a workforce feels supported in their employment.

Workplace diversity

Employers are not legally required to undertake diversity and inclusion initiatives, but they have been shown to effectively reduce the amount of employment litigation and discrimination claims.

Equal employment opportunities create diversity in the workplace. An employer can encourage workplace diversity by employing candidates from a range of different ethnic and social backgrounds, genders and sexual orientations. Current and prospective employees should be evaluated solely based on their capacity to do their job, regardless of attributes such as race, colour or gender.

One of the crucial indicia of positive culture in the workplace is respect for diversity. Individuals have different experiences, perspectives and knowledge to bring to a workplace that can greatly enhance work practice. In order to create a happy and diverse workplace, employers must treat all employees equally and fairly in all aspects of their employment.

Workplaces do need to be careful when gathering information from prospective or current employees about attributes such as sexual orientation and religion. There is a risk, particularly when advertising a position, that asking questions about these attributes could be seen as discriminatory, or could suggest to the prospective employees that the employer had an ulterior motive. Organisations should consult with a lawyer to ensure their D&I initiatives are legally sound and do not unintentionally (and unlawfully) discriminate against employees.

Discrimination in the workplace

A proactive approach to workplace inclusion helps an employer meet their legal obligations under discrimination and equal opportunity law. In Australia, many federal and state/territory laws promote equality and protect employees from discrimination. At a federal level, these anti-discrimination laws are the Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992 and Age Discrimination Act 2004. Each jurisdiction also has its own laws, such as the Anti-Discrimination Act 1977 in New South Wales. An employee who believes they were discriminated against can lodge a complaint with the Australian Human Rights Commission.

Anti-discrimination legislation applies to both direct and indirect discrimination. Direct discrimination occurs when an employee is treated differently because of a protected characteristic. For instance, it is direct discrimination to choose not to hire a potential applicant just because they are of the Muslim faith. Conversely, indirect discrimination occurs when the employee is treated like everyone else, but they are at a disadvantage because of their personal attribute. For example, it is indirect discrimination for an employer to insist that all female employees wear a short skirt uniform, when only some workers are disadvantaged because this policy violates their religious obligation to wear modest clothing.

Special measures

Within federal discrimination laws, there are provisions for “special measures” to allow positive discrimination. Gender leadership quotas, for instance, are often created under the special measure provision. These measures are intended to give disadvantaged groups greater access to opportunities in the workplace. Employers must implement special measures reasonably and appropriately to increase opportunities for a disadvantaged group.

Benefits of workplace culture and diversity

Diversity defines the culture of a workplace and sets expectations about opportunities for advancement. Employing individuals from diverse backgrounds can improve established workplace practices and lead to better employee mental health. That is not to say that there are no challenges to creating a diverse workplace in Australia. There may be resistance to change and practical issues involved in building more diverse teams. It may be necessary to recognise and overcome unconscious biases, or even outright harassment and discrimination from some quarters.

But diversity in the workplace can deliver huge benefits for both employees and employers. According to the Diversity Council of Australia’s 2021-2022 Inclusion@Work Index, workers in inclusive teams are four times less likely to leave their employment and four times more likely to work harder than normal. This has undeniable advantages when it comes to employee retention, recruitment costs and productivity, not to mention employee satisfaction.

The Go To Court employment law team can help an employer develop workplace culture and diversity employment policies or help an employee with a discrimination claim. Please get in touch with our friendly and helpful staff on 1300 636 846.