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

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

National equality policy. The Committee notes the National Human Rights Consultation which was launched in December 2008 by the Attorney-General, submitting its report in September 2009. The Committee notes the wide range of recommendations in the report, including the following: to conduct an audit of all federal legislation, policies and practices to determine their compliance with international human rights obligations, and in the audit to give priority to anti‑discrimination legislation, policies and practices and those on immigration; to better integrate human rights into public sector policy and legislative development, decision-making, service delivery and practice; to require federal departments and agencies to develop human rights action plans and report on human rights compliance in their annual reports; to increase indigenous Australians’ participation in government institutions; and to adopt a federal Human Rights Act. The Government published its response to the recommendations in the “Australia’s Human Rights Framework” in April 2010, which the Committee notes includes a commitment to develop a new National Plan of Action which will outline the programmes and action to be taken by all levels of government to promote and protect human rights. The Committee notes that a parliamentary joint committee on human rights is to be established, and that the Government intends to develop draft legislation harmonizing and consolidating anti-discrimination laws, to review federal anti-discrimination legislation to ensure it is working effectively, and to consider further the complaints handling processes and related role and functions of the Australian Human Rights Commission. The Committee asks the Government to provide information on the following:

(i)    the implementation of the Human Rights Framework as it relates to equality and non-discrimination in employment and occupation, including any progress in developing a National Plan of Action, and harmonizing and consolidating the anti-discrimination legislation;

(ii)   the role of employers’ and workers’ organizations in the process of developing and implementing the National Plan of Action;

(iii)  whether further consideration is being given to the other recommendations of the National Human Rights Consultation report noted above, including adopting a federal Human Rights Act.

Equality between men and women. The Committee notes the range of initiatives being taken to promote equality in employment and occupation between women and men, in particular at the federal level, and in New South Wales, South Australia and Victoria. With respect to concerns raised previously regarding the impact of the amendments to the Workplace Relations Act (Work Choices Act), including the reliance on individual bargaining, particularly on women seeking to balance paid work and family responsibilities, the Committee notes the Government’s acknowledgment that female employees were particularly disadvantaged by these amendments, and that the provisions at issue have been repealed as a consequence of the adoption of the Fair Work Act, 2009. The Committee notes in particular that, as a result of the adoption of the Fair Work Act, Australian Workplace Agreements (AWAs) can no longer be made, and specific provisions have been introduced to assist workers to balance work and family responsibilities, including adding “carer’s responsibilities” as a prohibited ground of discrimination (sections 153(1), 195(1) and 351(1)), and providing for parental and carer’s leave, and flexible work arrangements (section 65, divisions 5 and 7). The Committee notes, however, that with respect to the “right to request” flexible work arrangements (section 65) and an extension of unpaid parental leave for a further 12 months (section 76), the employer can refuse such requests on “reasonable business grounds” and according to section 44, it appears that the decision of the employer cannot be challenged. The Committee also notes the report of December 2008 of the Senate Standing Committee on Legal and Constitutional Affairs regarding the effectiveness of the Sex Discrimination Act, which includes a range of recommendations for the revision of the Act, as well as revisions to the Human Rights and Equal Opportunities Commission (HREOC) Act and the Equal Opportunity for Women in the Workplace Act. The Committee also notes the 2008 amendments to the Victoria Equal Opportunity Act, 1995, to facilitate accommodation of an employee’s responsibilities as a parent or carer. The Committee notes in addition that recent amendments to the South Australia Equal Opportunity Act, 1984, have added discrimination based on caring responsibilities as a prohibited ground. The Committee asks the Government to provide information on the following:

(i)    the status of the implementation of the recommendations of the Senate Committee, including the progress in adopting the Sex Discrimination Amendment Bill, 2010, to amend the Sex Discrimination Act, 1984;

(ii)   the stage of the review of the Equal Opportunity for Women in the Workplace Act, 1999, and of the Agency;

(iii)  the impact in practice of the Fair Work Act and the amendments to the Victoria Equal Opportunity Act and the South Australia Equal Opportunity Act, in assisting workers to balance work and family responsibilities, with a view to ensuring equality of opportunity between men and women in employment and occupation, and how an employee can in practice assert their right to flexible work arrangements and extension of unpaid leave in law and practice in the light of section 44 of the Fair Work Act;

(iv)  specific measures taken or envisaged to address discrimination in education and employment of migrant, refugee and minority women and the results thereof as previously requested by the Committee;

(v)   any further measures taken to improve women’s access to employment and occupation, including strengthening women’s representation in decision-making roles and the impact thereof at the federal and state levels.

Sexual harassment. The Committee notes the Government’s indication that sexual harassment continues to be a problem in Australian workplaces, principally for women, but also for men. The Committee also notes the report of the Australian Human Rights Commission of September 2010, indicating that sexual harassment accounts for one of the largest groups of complaints under the Sex Discrimination Act, and recommending, among other things, the development and implementation of a national sexual harassment prevention strategy. The Committee asks the Government to provide information on measures taken or envisaged, including the development of a national sexual harassment policy, to prevent and address sexual harassment at work.

Additional grounds of discrimination. The Committee notes the recent amendments to the South Australia Equal Opportunity Act, 1984, expanding protection against discrimination, including for discrimination based on an expanded definition of disability, and due to religious appearance or dress. The Committee previously asked the Government to provide information on exemptions from the federal Age Discrimination Act, as well as follow-up to recommendations from the HREOC regarding age discrimination. The Committee notes the Government’s indication that the “dominant reason” test in the Age Discrimination Act, 2004, has been removed through the Discrimination and Other Human Rights Legislation Amendment Act, 2009, so that it is no longer necessary to show that age was the dominant reason for a discriminatory act. The Committee again asks the Government for information on the laws and programmes that continue to be exempted from the Age Discrimination Act, as well as the measures taken to implement the recommendations of the HREOC regarding age discrimination, including the need for community education about age discrimination legislation and campaigns to discourage prejudicial stereotyping, and whether further consideration is being given to undertaking an independent review of the effectiveness of the Act, including the nature and range of exemptions permitted. The Committee would also welcome any information on the implementation in practice of the amended discrimination provisions of the South Australia Equal Opportunity Act, including with respect to the exemptions permitted.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. The Committee notes the concerns raised by the United Nations Committee on the Elimination of Racial Discrimination (CERD) regarding discrimination against indigenous peoples through the Northern Territory Emergency Response (NTER), which included the suspension of the Racial Discrimination Act, 1975. The CERD points to resulting restrictions on the rights of indigenous to land, property, work and remedies and, while noting that the complete reinstatement of the Racial Discrimination Act is scheduled for December 2010, it remains concerned by the continuing difficulties in using the Act to challenge and provide remedies for racially discriminatory NTER measures (CERD/C/AUS/CO/15-17, 13 September 2010, paragraph 16). The CERD also points to activities, notably in the extractive sector, affecting indigenous peoples’ rights to land and livelihoods, as well as difficulties related to the Native Title Act for the recognition of traditional lands (paragraphs 13 and 18). The Committee asks the Government to provide information on measures taken or envisaged to ensure that indigenous peoples have access to land and resources to allow them to engage in their traditional occupations. Please also provide detailed information on the progress of reinstating the Racial Discrimination Act, and on concrete measures to address discrimination against indigenous peoples due to the NTER with respect to occupation, employment and access to remedies.

Parts III and IV of the report form. Supervision and enforcement. The Committee notes the Government’s indication that, pursuant to the Fair Work Act, Fair Work Australia is now responsible for overseeing the new workplace relations system, and has power to help employees and employers resolve discrimination disputes at the workplace. The Government notes further that the Fair Work Ombudsman promotes compliance with the legislation, and can engage Fair Work Inspectors who can, where necessary, take steps to enforce the Act through the court system. The Committee also notes that the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs, referred to above, include proposals to increase the power of the Sex Discrimination Commissioner to monitor progress and investigate alleged breaches of the Sex Discrimination Act without requiring an individual complaint, as well as expanding the powers of the HREOC. The Committee also welcomes the detailed information provided by the Government regarding the relevant case law from New South Wales, Victoria, Queensland and South Australia, as well as details of complaints handled by the HREOC, and State Boards, Commissions and Tribunals of New South Wales and Queensland. Noting that, pursuant to section 539 of the Fair Work Act, among the non-discrimination provisions, section 351 is a civil remedy provision but sections 153 and 195 are not, the Committee requests the Government to indicate how violations of sections 153 and 195 are addressed, including the remedies and sanctions available. The Committee also asks the Government to provide information on the following:

(i)    any action taken by Fair Work Australia, the Fair Work Ombudsman, the Fair Work Inspectors and the courts in relation to the non-discrimination provisions of the Fair Work Act;

(ii)   any steps taken to implement the recommendations regarding increasing the powers of the Sex Discrimination Commissioner and the HREOC; and

(iii)  any further legal or administrative decisions or complaints addressed at the state level relevant to the implementation of the Convention.

Tasmania. Noting that no information has been provided in the Government’s report regarding the application of the Convention in Tasmania, the Committee asks the Government to ensure that such information is included in its next report.