Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

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

The Committee notes with interest the detailed report and annexed information furnished by the Government.

1. The Committee notes the numerous legislative changes at the federal and state levels which have a bearing on the application of the national policy to promote equal opportunities and treatment in employment pursuant to the Convention. In particular, the Committee notes: the Workplace Relations Act, in force on 1 December 1996 (which aims at promoting economic prosperity and welfare of the people by "respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin" (section 3(j)) and which assigns to the Australian Industrial Relations Commission (AIRC) the power to prevent and settle industrial disputes having regard to, inter alia, the need to prevent and eliminate discrimination on these grounds (section 88B(3)(e)); the Racial Hatred Act, 1995, which inserted into the Racial Discrimination Act of 1975, provisions to render unlawful public acts (including those performed in workplaces) which are likely to offend, insult, humiliate or intimidate because of another person's race, colour or national or ethnic origin; and the Sex Discrimination Amendment Act, 1995, which introduced into the 1984 principal Act, a new definition for indirect discrimination and a "reasonableness" defence, which places on the respondent the onus of establishing that the requirement or condition imposed on the complainant was reasonable in the circumstances.

2. The Committee also notes that a code of practice is being elaborated to give practical guidance to help employers, trade unions, employment agencies and employees understand the provisions of the Racial Discrimination Act and explain how they can implement policies to eliminate racial discrimination, harassment and vilification and enhance equality of opportunity. In addition, it notes that the Human Rights Amendment Bill, 1997 (currently before Parliament), aims, inter alia, at embodying a legislative response to the High Court's decision in Brandy v. Human Rights and Equal Opportunity Commission (referred to in the previous direct request), which found that the Commission did not have the constitutional power to determine disputes finally. The Bill would centralize complaint investigation and conciliation in the Office of the President of the Commission and simplify a number of procedural and enforcement aspects. Please provide copies of the finalized code of practice and furnish information on its dissemination and, eventually, its impact. Please also provide copies of the text of the Human Rights Amendment Act, once adopted.

3. In addition to this legislative movement, the Committee is aware of a number of changes in relation to agencies charged with implementing the national policy on equality of opportunity and treatment in employment. It notes that the Commonwealth Employment Service (CES), whose review of operations for the better implementation of the Sex Discrimination Act had interested the Committee (see previous direct request), has been replaced with a new agency -- the Commonwealth Service Delivery Agency, operating as "Centrelink" -- which was due to be fully operational by December 1997. According to the report, "Centrelink" aims to provide integrated delivery points for the range of services delivered previously by the CES and the Department of Social Security. The Committee notes with interest that providers of the services will be contractually obliged to deliver those services free from sexual harassment and from any other unlawful discrimination that would contravene, inter alia, the legislation proscribing discrimination on the grounds of sex, disability or race. The Committee also notes that as a result of the 1993 Review of Government Policy Mechanisms on the Status of Women, the Office of the Status of Women (OSW) was re-structured in 1996 to strengthen its capacity to provide strategic, coordinated and well-researched policy advice within the Office of the Prime Minister. The OSW has also instituted a more effective consultation process with women on priority issues, through holding regular round table meetings with organizations of particular relevance to women. Regarding action to eliminate gender discrimination, the Committee notes, however, the concern expressed by the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) in its concluding comment on the Government's report to that Committee which states:

The Committee was concerned about the Government's apparent shift in attention and commitment to the human rights of women and the achievement of gender equality. Indications such as the cut by 38 per cent in the budget of the Office of the Status of Women and a similar reduction of funding for the Human Rights and Equal Opportunities Commission gave rise to concern. While increased efforts at gender mainstreaming into all sectoral areas were commendable, the Committee was concerned about the weakened role of national machinery in providing policy advice on equality issues and in monitoring the effective implementation of such policies ... The Committee was concerned at the continuing adverse situation of Aboriginal and Torres Strait Islander women ... Their situation, as well as that of migrant women, was further compounded by an apparent rise in racism and xenophobia. (United Nations document A/52/38/Rev.1 of 1997.)

The Committee asks the Government to provide information to illustrate that the measures being taken are having a significant impact on eliminating the discrimination experienced by women, in general, and by indigenous and migrant women, in particular, in all of the areas covered by the Convention.

4. With regard to Article 3 of the Convention, the Committee notes that the Workplace Relations Act provides for the making of collective agreements approved by the AIRC, called "certified agreements", which the AIRC must refuse to certify if it considers that a provision of the agreement discriminates against an employee covered by the agreement on any of the same grounds listed in section 3(j) of the Act (set out in paragraph 1 above). The Act also provides for the conclusion of individual agreements called Australian Workplace Agreements (AWAs), approved by the Employment Advocate. In this regard, the Committee notes that Schedule 8 to the Regulations under the Act states that parties to AWAs agree that they intend to achieve the principal object set out in section 3(j) of the Act. As the Act does not appear to establish a procedure for individuals or their representatives to gain access to information on the types of terms and conditions of work set out in AWAs, the Committee requests the Government to indicate whether there are ways for interested persons or organizations, such as trade unions, to have access to factual information of this nature (perhaps directly from the Employment Advocate) in order to advise their members. Please also indicate whether specific measures have been taken to suggest how equality of opportunity and treatment may be promoted within the context of AWAs and advise on any action taken by the Employment Advocate in this respect.

5. In its previous direct request, the Committee had asked for information on progress in the review to remove discriminatory provisions from federal awards, being undertaken by virtue of section 150A(2)(b) of the Industrial Relations Act, 1988. In this regard, the Committee notes that proceedings were brought against the Commonwealth Government by the States of Victoria, South Australia and Western Australia seeking declarations that certain provisions of the Act allowing for the imposition of obligations on employers with respect to a number of principles enunciated in ratified ILO Conventions, including non-discrimination in employment, were invalid. The High Court, in a decision of 4 September 1996, largely upheld the challenged provisions, on the basis that the Commonwealth Government has the power to legislate on these matters under its external affairs power of the Constitution (section 51). Although section 150A(2)(b) was repealed by the Workplace Relations Act, the Committee notes that the new legislation contains a range of provisions intended to prevent and eliminate discrimination in awards. In particular, the Committee notes that section 89A(8) of the new Act allows the AIRC to include a model anti-discrimination clause in awards. Please provide information about the extent to which the AIRC has used its power to include model anti-discrimination clauses in awards and on the extent to which the AIRC has set aside or varied awards referred to it by the Sex Discrimination Commissioner (section 113 of the Workplace Relations Act).

6. Tasmania. The Committee notes with regret that for some years, the Government's report has contained no information on the legislation and practice in Tasmania. It has, however, been able to note, from the copy at its disposal of the 1996 Annual Report of the Tasmanian Sex Discrimination Commission, the activities of the Commission in regard to the receipt, investigation and resolution of complaints (the majority of which concerned discrimination in employment), and the efforts undertaken to provide education and information about the Sex Discrimination Act, 1994. The Committee urges the Government to ensure that its next report contains information on the legal and practical implementation of the Convention in all jurisdictions.

7. Queensland. The Committee notes the enactment of the Workplace Relations Act on 27 March 1997, which reflects in many respects the federal legislation of the same name, including those provisions designed to prevent discrimination. Noting that the State Act contains certain exemptions from unlawful dismissal, including an exemption for employees during the first 12 months of their employment who are employed by an employer with 15 or fewer employees, the Committee requests the Government to provide information on the means of redress available under the Act to persons with less than 12 months service in small enterprises who consider themselves dismissed for discrimination which contravenes the Queensland Anti-Discrimination Act, 1991.

8. Australian Capital Territory (ACT). The Committee notes with interest that the Convention was one of the elements taken into account in the 1996 amendment of the Discrimination Act, 1991. It also notes that the ACT Government, in conjunction with the ACT Human Rights Office has commenced a review of all ACT legislation to determine compliance with the discrimination legislation. Please provide information on the progress and outcome of this review.

9. South Australia. The Committee notes with interest the enactment of the Racial Vilification Act, 1996 (yet to be proclaimed), and the introduction into Parliament of the Equal Opportunity (Sexual Harassment) Amendment Bill, 1997, which proposes to extend the sexual harassment provisions of the principal legislation to judicial officers, Members of Parliament and members of local councils. It also notes the instigation of two projects, the Community Outreach Project -- which aims to ensure that targeted minority communities have access to information about their rights and responsibilities under equality legislation -- and the Police Department Project which aims at training police in the area of equal opportunity legislation. The Committee hopes that further information will be provided on these various initiatives, more particularly to illustrate the practical impact of the measures being taken.