Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

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

1. With reference to its previous comments expressing concern about certain measures taken or announced by the Government which, in the Committee’s view, may have an impact on the role and functioning of the national human rights and equality policy and machinery, the Committee notes the Government’s statement that the reduction in funding for the Human Rights and Equal Opportunities Commission did not reflect any lack of commitment to human rights, but primarily was a consequence of the High Court’s decision in Brady v. Human Rights and Equal Opportunities Commission. This decision led to the transfer of the Commission’s hearing functions to the Federal Court and the Federal Magistrates Service under the Human Rights Legislation Amendment Act 1999 (HRLAA), which came into effect on 13 April 2000. As a result, the Commission is no longer able to determine complaints alleging unlawful discrimination under the Racial Discrimination Act, the Sex Discrimination Act, and the Disability Discrimination Act, but only to engage in conciliation. Matters that cannot be conciliated or terminated for other reasons in the course of Commission proceedings can now be brought before the Federal Court or the Federal Magistrates Service for an enforceable decision. Noting from the Government’s report that there has been no significant change in the number of complaints received by the Commission following the transfer of the hearing function, the Committee requests the Government to continue to provide information on the functioning of the arrangements introduced by the HRLAA, including the number and nature of cases concerning discrimination in employment and occupation brought before the Commission and the Federal Court or the Federal Magistrates Service respectively, and their outcomes.

2. The Committee also notes that the HRLAA centralizes the statutory powers to handle complaints in the office of the Commission’s President and that the Human Rights Legislation Amendment Bill (No. 2) 1999, which is currently awaiting debate by the Senate, would make education and dissemination of information on human rights the central functions of the Commission. Hoping that the Commission’s capacity to investigate and conciliate complaints will be maintained to the fullest extent, the Committee asks the Government to keep it informed of the status of this legislative initiative and to provide a text of the Bill as soon as it is adopted.

3. As regards the situation concerning equality of women in employment, the Committee notes that, as announced previously by the Government, the Affirmative Action (Equal Opportunity for Women) Act, 1996 was replaced by the Equal Opportunity for Women in the Workplace Act, 1999. Under the new legislation, the Affirmative Action Agency has been renamed the Equal Opportunity for Women in the Workplace Agency, which, inter alia, is charged with advising and assisting employers in the development and implementation of workplace equal opportunities programmes, issuing guidelines to employers, and undertaking research and promotional activities. The Committee also notes that the approximately 3,000 employers covered by the Act are required to report annually to the Agency on the implementation and effectiveness of their workplace equality programmes. With reference to Article 3, paragraph (a), of the Convention, the Committee notes that the requirement of consulting with each trade union having members affected by a proposed workplace programme has been replaced by a general consultation requirement according to which the employer must consult with its employees or their nominated representatives. If the Agency is satisfied that an employer has taken all reasonably practicable measures to address the issues relating to employment matters that affect equal opportunities for women, it may waive the employer’s obligation to report for a specified period. The Committee notes the Government’s statement that while emphasis on facilitation has increased under the new legislation, the sanctions of "naming" and "contract compliance" are maintained as a last resort against non-complying employers. The Committee asks the Government to provide information on the activities of the Equal Opportunity for Women in the Workplace Agency, including its reports under section 12 of the Act, and its practice concerning waiving reporting requirements and imposing sanctions. Noting that the requirements for the content of workplace programmes and the employers’ reports set out in the new Act are very broad, the Committee would be grateful to receive information on trends concerning the content of these programmes and reports, as well as on the overall impact of the Act on women’s equality in the workplaces covered.

4. Recalling its comments on the adverse situation of indigenous women and migrant women, the Committee notes from the Government’s report that the participation in employment of women born in other than the main English-speaking countries was at 44.4 per cent in 2001, compared to 60 per cent in respect to Australian-born women. According to the Government, more recently arrived migrants, including women, have had a more positive experience in the Australian labour force than those arriving in earlier periods. The Committee notes that as of February 2000 the labour force participation rate of indigenous women (42.6 per cent) remains considerably lower than for non-indigenous women (54.8 per cent). It requests the Government to continue to provide information on measures taken to ensure equality of indigenous and migrant women in the labour market, including any follow-up measures on the regional consultations held by the Government on issues of concern to migrant and refugee women during 2001.

5. Further to its previous comments on the disproportionately high unemployment of indigenous Australians, the Committee notes from the Government’s report that in May 1999 the Commonwealth Government launched the Indigenous Employment Policy (IEP) which complements mainstream employment services and the activities under the Community Development Employment Projects (CDEPs). The Committee notes that the IEP is focused on the private sector, taking into consideration indications that the employment situation of indigenous Australians is set to worsen over the next decade (indigenous population is expected to increase at double the rate of the general population) and that currently around 70 per cent of all indigenous employment is reliant on some form of public funding. The Committee notes that in August 2000 the Government received a report on welfare reform that, inter alia, underlined the need for innovative approaches to employment service delivery for indigenous peoples that are culturally appropriate and can be adapted to local circumstances. An Indigenous Community Capacity Roundtable was held in October 2000 upon the request of the Prime Minister, and in November 2000 the Council of Australian Governments announced a framework for advancing reconciliation between indigenous and non-indigenous Australians. The Committee notes that the outcomes of these initiatives were taken into account in the development of new initiatives in the area of indigenous employment announced under the 2001 budget. The Committee requests the Government to provide information on implementation and impact of the various programmes and projects to promote equal access to education, training and employment of indigenous Australians, including up-to-date statistical information.

6. The Committee notes with concern that the HRLAA abolishes the portfolio-specific commissioners of the Human Rights and Equal Opportunity Commission, including the Aboriginal and Torres Strait Islander Social Justice Commissioner. According to the Government this measure is aimed at addressing the perception that the Commission is "too focused on protecting those sections of the community for whom a specific commissioner exists". In light of the continuing inequalities in respect to the access to employment of indigenous Australians, the Committee hopes this development will not reduce the level of protection against discrimination of indigenous peoples.

7. The Committee notes that the Government did not reply to its previous comments concerning the high representation of indigenous Australians in the criminal justice and penal systems, which, in the Committee’s view, may negatively impact on their prospects for employment. The Committee reiterates its concerns over this issue and hopes that the Government will provide information on measures taken to address this problem, including measures to reintegrate indigenous offenders into society through education, training and employment.

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