Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

The Committee notes the Government’s report and the attached documentation and asks the Government to provide information on the following points.

1. The Committee recalls that the Human Rights Legislation Amendment Act (No. 1), 1999 (HRLAA), removed the public hearing function of the Human Rights and Equal Opportunity Commission (HREOC), while providing access to the federal court system in cases before the HREOC in which conciliation failed or was terminated for other reasons. In this respect, the Committee notes the findings of a review undertaken by HREOC of the operation of the HRLAA during 2001. The HREOC found that, during the period examined, there was no decrease in the number of complaints lodged under federal discrimination law and that a significant number of complainants used the access to the federal court system, while the percentage of complaints that were conciliated increased. The Committee also notes that, according to the Government, the decisions of the Federal Court and the Federal Magistrate Service under the Racial Discrimination Act and the Sex Discrimination Act between September 2000 and September 2003 had so far been consistent with the principles developed by the HREOC. The Committee requests the Government to continue to provide information on the functioning of the national human rights and equality machinery, including the number, nature and outcomes of cases brought before the HREOC and the courts under federal anti-discrimination legislation.

2. The Committee thanks the Government for the detailed information provided in reply to the 2002 general observation on the issue of sexual harassment, including indications concerning the relevant case law. The Committee would appreciate continuing to receive information on new developments on this issue, including the results of the research currently undertaken by the Australian Industrial Relations Commission and the revised code of practice when it is finalized.

3. The Committee notes the information contained in the Government’s report on the status of women in the labour force. It notes that 52 per cent of all new jobs created between 1996 and 2003 were occupied by women and that the labour force participation rate of women was 67.5 per cent in March 2003. However, women are still underrepresented among those holding senior posts in the private sector and the Australian Public Service. The Committee requests the Government to continue to provide similar information in its next report, including statistical information. Emphasizing the need to take into consideration the effects of multiple forms of discrimination, the Committee also requests the Government to provide statistical information on the employment situation of indigenous women and women of immigrant background.

4. With reference to its previous comments, the Committee notes the detailed information provided on the activities of the Equal Opportunity for Women in the Workplace Agency (EOWA). It notes that 2,644 organizations reported to the Agency in 2001-02 out of which 74 per cent had finalized their equal opportunity assessments. Of these reports 92 per cent were considered to be in compliance with the Equal Opportunity for Women in the Workplace Act, 1999 (EOWWA), and 3 per cent of the organizations were waived from reporting for the next three years. The number of non-compliant organizations was 29 in 2001 and 24 in 2003. The Government is requested to continue to provide information on the operation of the EOWWA and the activities of the EOWA, including copies of its annual reports, and their impact on women’s equality in the workplaces covered. Please also indicate in which ways the EOWA cooperates with workers’ organizations.

5. The Committee notes that the Government is currently considering the proposals made by the Sex Discrimination Commissioner in her report entitled "A time to value: Proposal for a paid maternity leave scheme" and that the Prime Minister has established an interdepartmental taskforce on work and family to review options to facilitate the choice of parents in balancing their work and family lives. The Committee also notes that a Bill to amend the Sex Discrimination Act to clarify the prohibition of pregnancy discrimination was introduced to the federal Parliament in June 2003. Please keep the Committee informed of these initiatives, including results and follow-up measures.

6. Recalling its comments concerning the high number of indigenous Australians who come before the criminal justice and penal systems, the Committee notes the information provided by the Government outlining the assistance available to indigenous offenders upon release under the Indigenous Employment Policy. The Committee requests the Government to indicate the kind of training provided during imprisonment with a view to promoting access to employment upon release.

7. In respect to the absence of a statutory right to an interpreter in federal tribunals and the Committee’s concern that this situation may affect complaints made by Aboriginal and Torres Strait Islander people and people of non-English-speaking background, the Committee notes the Government’s statement that the introduction of such a right is currently not under consideration. Noting the Government’s indication that the federal courts provide interpreter services for litigants where they do not have the financial means to purchase the service and that the federal tribunals provide free interpreters for applicants as required, the Committee requests the Government to indicate the percentage of cases in which interpreters have been provided to Aboriginal and Torres Strait Islander people and people of non-English-speaking background in proceedings in federal courts and tribunals.

8. States and territories. (a) New South Wales. The Committee notes with interest the progress made in reaching the Government’s target for the employment of indigenous Australians and women in the public sector. With regard to discrimination on the basis of national extraction, the Committee notes with interest the action research project to assist job applicants of immigrant background to effectively present their skills and experience when applying for positions requiring their generic skills. Please keep the Committee informed of the results of this project and of any other measures taken to further promote the application of the Convention.

(b) Queensland. The Committee notes that the Anti-Discrimination Act, 1991, was amended in 2002 to include breast-feeding as a prohibited ground of discrimination. It also notes that the next national vocational education and training strategy (2004-10) will include improving outcomes for indigenous Australians as a key focus. Please continue to provide information on the concrete measures taken to apply the Convention.

(c) Western Australia. Recalling it previous comments, the Committee notes the Government’s indication that the growing number of complaints of race discrimination in Western Australia may be attributed to the greater general awareness of the Equal Opportunity Act, 1984. Complaints of race discrimination or racial harassment have increased from 125 in 2000-01 to 175 in 2001-02. The Committee is looking forward to receiving further information on the various measures taken to promote equality of opportunity and treatment in employment and occupation.

(d) South Australia. The Committee notes that the review of the South Australian Industrial Relations System undertaken in 2002 recommended that the South Australian Industrial Relations Commission be required to apply the principles of the Workers with Family Responsibilities Convention, 1981 (No. 156), when exercising its powers and that the current industrial relations system does not necessarily effectively address the specific needs of different groups in the workforce, including people from non-English-speaking and indigenous backgrounds, women and people with disabilities. The Committee would appreciate receiving information on the follow-up measures taken to the review’s recommendations. Noting that the review did not recommend the incorporation of Convention No. 111 into the Industrial and Employee Relations Act due to a number of reasons, including the Convention’s age and that it does cover certain grounds of discrimination, the Committee draws attention to the fact that Convention No. 111 has not only been considered as up to date by the Governing Body of the ILO, but is also one of the ILO’s fundamental human rights Conventions. The Committee also points to Article 1(1)(b) of the Convention which provides that any additional ground may be declared, as has been done at the federal level.

(e) Northern Territory. Noting that the Anti-Discrimination Act was amended in 2001 to provide for a definition and limits of vicarious liability of employers and principals for acts of their workers and agents, the Committee requests the Government to provide information on the application of this amendment. Please continue to provide information on the various policies and programmes implemented by the office of the Commissioner for Public Employment to promote the Convention’s application, including in respect to women and Aboriginal and Torres Strait Islander people.