Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Australia (Ratification: 1973)

Legislative developments. The Committee notes with interest the adoption of the Fair Work Act, 2009, which became fully operational in January 2010, substantially repealing the Workplace Relations Act, 1996. The Committee also notes the communication of the Australian Council of Trade Unions (ACTU), stating that the Fair Work Act contains significant improvements in protection from discrimination at work, and also noting the adoption of the Paid Parental Leave Act, 2010, which will provide Australia’s first statutory paid parental leave scheme as of 1 January 2011. The Committee notes in particular that one of the objectives of the Fair Work Act set out in section 3 is “assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and ... protecting against unfair treatment and discrimination ...”. Pursuant to section 134, an objective of the “modern awards” (legal instruments setting minimum terms and conditions for national system employees in particular industries or occupations) includes “the need to promote social inclusion through increased workforce participation ...”, and modern awards and enterprise agreements must not include terms that discriminate against an employee “because of, or for reasons including, the employee’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” (sections 153(1), 194(a) and 195(1)). The Act further provides a general prohibition of an employer taking any “adverse action” against an employee or prospective employee on these same grounds (section 351). The Committee notes in this regard that all the prohibited grounds enumerated in Article 1(1)(a) of the Convention have been included, as well as a range of additional grounds, as foreseen in Article 1(1)(b), and provides improved protection for prospective employees from discrimination in access to employment, as well as covering aspects of employment and occupation beyond dismissal. The Committee asks the Government to provide information on the following points:

(i)    the implementation of the Fair Work Act and the Paid Parental Leave Act in practice, including any measurable impact with respect to promoting equality of opportunity and treatment in employment and occupation, with a view to eliminating any discrimination in respect thereof;

(ii)   any legal or administrative decisions regarding the non-discrimination provisions of the Fair Work Act, including any determinations of what is not considered discrimination pursuant to sections 153(2), 195(2)
and 351(2);

(iii)  the progress of the States’ acceptance of the jurisdiction of the Fair Work Act.

Indigenous peoples. The Committee had raised concerns in its previous observation in relation to the education and employment opportunities of indigenous peoples, including the lack of sufficiently targeted measures to address inequality and discrimination, and the lack of appropriate mechanisms. The Committee notes with interest the Government’s expression of support in April 2009 for the United Nations Declaration on the Rights of Indigenous Peoples, as well as the national apology for past negative government policies issued on 13 February 2008 to indigenous peoples, and in particular to the Stolen Generations – the generations of indigenous peoples taken away from their families and communities. The Committee also notes with interest the wide range of initiatives at the federal and state levels that have been undertaken to address inequality and discrimination that have been experienced by indigenous peoples. The Committee notes in particular the National Indigenous Reform Agreement between the federal, state and territory governments of Australia (the Council of Australian Governments) of November 2008, committing all jurisdictions to achieve the “Closing the Gap” targets, to address disadvantage-facing indigenous peoples, one of the aims of which is to halve the gap in employment outcomes between indigenous and non-indigenous peoples within a decade. The Agreement refers specifically to the reformed Indigenous Employment Programme (IEP) which is to make employment and training services more responsive to the specific needs of indigenous jobseekers, indigenous businesses and employers. It also refers to the development of a Commonwealth Indigenous Economic Development Strategy (IEDS), with the aim of contributing to the achievement of long-term economic independence for indigenous Australians by promoting economic participation and wealth creation by indigenous communities and individuals, and through the strengthening of partnerships with the corporate sector. The Committee also notes that the Government refers to a new Community Support Programme. The Committee notes, however, the Government’s indication that, in 2008–09, Job Network members placed 23 per cent fewer indigenous jobseekers into jobs than in the previous year.

At the state level, the Committee notes in particular the following initiatives: in Victoria, the New Workforce Partnerships, the Indigenous Youth Employment Programme, the Wur-cum barra to increase indigenous employment across the public sector, and the Koori Business Network; and in Queensland – the Skilling Queenslanders for Work initiative, the Indigenous Economic Participation National Partnership with the aim of reforming government procurement, service delivery arrangements and increase public sector employment to improve indigenous participation in the labour market, the Department of Education and Training’s Aboriginal and Torres Strait Islander Employment Framework for Action 2007–10, and the Positive Dreaming Solid Futures – Indigenous Employment and Training Strategy 2008–11. Initiatives in South Australia include an updated Strategic Plan, which establishes targets to increase aboriginal workforce participation, and the South Australian Works initiative, delivering specific programmes aimed at improving employment and vocational training outcomes for aboriginal peoples; and in New South Wales (NSW), the strategy entitled “Making it our Business Improving Aboriginal Employment in NSW public sector” was being reviewed with a view to strengthening support in the recruitment, employment and development of aboriginal and Torres Strait islanders in the NSW public sector.

Welcoming the range of statements and initiatives at the federal and state levels that indicate a commitment to promoting and protecting the rights of indigenous peoples, including in education, employment and occupation, the Committee encourages the Government to continue its efforts in this regard. It also asks the Government to continue monitoring the impact of these measures, and to provide information on the role of indigenous peoples in developing and implementing these initiatives, and the actual outcomes achieved.

The Committee is raising other points in a request addressed directly to the Government.