Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 31 August 2012.

Legislative developments. Federal. The Committee recalls that as of 1 January 2010, the states, with the exception of Western Australia, have referred their industrial relations powers to the Commonwealth. Thus the Fair Work Act of 2009 applies to all employers and employees in Victoria, the Northern Territory and the Australian Capital Territory; to private sector employers in New South Wales, Queensland, South Australia and Tasmania; local government employers in Tasmania; and national system employers and employees in Western Australia. The Committee notes the Government’s indication that a post-implementation review of the Fair Work Act of 2009 was undertaken by an independent panel of experts in 2012. The Committee also recalls that under the Human Rights Framework, which was launched in April 2010, the anti-discrimination consolidation project constitutes a key element, with a view to streamlining five Commonwealth anti-discrimination acts into a single comprehensive law. The Committee notes that the Senate Legal and Constitutional Affairs Committee released its inquiry report on the “exposure draft” of the Human Rights and Anti-discrimination Bill on 21 February 2013, and that the Government is now considering this report. The Government also indicates that it has held three stakeholder forums and separately met directly with a number of key stakeholders. In this connection, the Committee notes the observations of the ACTU, in particular, pointing out the discrepancy between the Fair Work Act and the state legislation concerning the protection for workers with family or caring responsibilities, and asking the Government to ensure that both family and caring responsibilities are included as grounds of discrimination in the consolidated Act.

The Committee notes with interest the adoption of the Workplace Gender Equality Act, 2012, which entered into force on 1 August 2013. The Act incorporates all amendments to the Equal Opportunity for Women in the Workplace Act No. 91 of 1986, and now makes specific reference to the Convention (section 5(9)), establishes the Workplace Gender Equality Agency (section 8A), requires employers to report against gender equality indicators, such as gender composition of the workforce, gender composition of governing bodies, equal remuneration between women and men, availability and utility of flexible working arrangements, and consultation with employees on issues concerning gender equality in the workplace (sections 13 and 3(1)). In addition, pursuant to section 1.1 of the Workplace Gender Equality Procurement Principles, which came into effect on 1 August 2013, “non-public sector” employers with 100 or more employees must supply a letter of compliance with the Workplace Gender Equality Act with their tender submission or prior to contracting with the Government. Pursuant to section 1.3 of the Principles, the Workplace Gender Equality Agency has responsibility for promoting and facilitating the implementation of the Principles. The Committee asks the Government to continue to provide information on the application of the Fair Work Act of 2009 with respect to the implementation of the principles of the Convention, including information on any follow-up activities to the review by the independent panel of experts. The Committee also requests information on the progress made in the anti-discrimination consolidation project and other initiatives under the Human Rights Framework, as they relate to non-discrimination and equality in employment and occupation, including specific information on the consultation process and any follow-up to the Senate Committee’s inquiry report. Please also reply to the issues raised by the ACTU, including with respect to the protection of workers with family or caring responsibilities. The Committee further requests the Government to provide information on the practical application of the Workplace Gender Equality Act of 2012.

Legislative developments. State. The Committee recalls the concerns raised by the ACTU on the Victoria Equal Opportunity Act of 2010, in particular with respect to the extension of the “permanent exceptions” in the Act, enabling discrimination by faith-based groups and schools, and the limitations on the powers of the Victorian Equal Opportunities Commission. The Committee notes that pursuant to Act No. 26 of 2011, amendments were made to the Equal Opportunity Act of 2010 before its entry into force on 1 August 2011, including with regard to religious bodies and schools. Pursuant to section 127 of the Equal Opportunity Act of 2010, as amended, the Victorian Equal Opportunity and Human Rights Commission may conduct an investigation where there is evidence of serious systemic discrimination. Pursuant to sections 82(2) and 83(2) of the same Act, prohibition of discrimination does not apply to religious bodies and schools that conform with the doctrines, beliefs or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion. The Committee recalls that the concept of inherent requirements must be interpreted restrictively so as to avoid undue limitation of the protection that the Convention is intended to provide (General Survey on fundamental Conventions, 2012, paragraph 827). The Committee asks the Government to indicate how it is ensured that sections 82(2) and 83(2) of the Victoria Equal Opportunity Act of 2010, as amended, do not in practice deprive equality of opportunity and treatment in respect of employment. The Committee also asks the Government to continue to provide information on new or revised legislation on non-discrimination and equality of the states and territories, as well as information on its application in practice.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. The Committee recalls the findings and conclusions of the Northern Territory Emergency Response (NTER) evaluation report regarding restrictions on the rights of indigenous peoples to land, property, work and remedies. It also recalls difficulties for the recognition of traditional lands, in particular, the five-year leases, resulting in compulsory acquisition of townships which had been held under the title provisions of the Native Title Act of 1993. The Committee further recalls the recommendations made by the Australian Human Rights Commission in 2010, including regarding the need for improved consultation and cooperation with Aboriginal and Torres Strait Islander peoples before adopting or implementing any legislative or administrative measures relating to native title reforms. The Committee notes that Stronger Futures in the Northern Territory Act and the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act came into force on 16 July 2012. It further notes the Government’s indication that the Stronger Futures in the Northern Territory Act of 2012 contains measures aimed at removing barriers so that Aboriginal landowners of community living areas and town camps can use their land voluntarily for a wider range of purposes, including economic development and private home ownership. The Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act of 2012 repealed the Northern Territory National Emergency Response Act of 2007, and as a result of this new legislation, compulsory five-year leases ceased on 17 August 2012. In addition, pursuant to an amendment made by the Native Title Amendment Act No. 1 of 2010 to the Native Title Act of 1993, native title owners may request to be consulted about public housing developments. The Committee notes the Government’s indication in this regard that from June to August 2011, more than 450 meetings were held with people in around 100 communities and town camps across the Northern Territory. The Government indicates that further proposed amendments to the Native Title Act of 1993 are being finalized, outlining the consultation process and a reporting mechanism for the consultation process. The Committee also notes the Government’s indication that the Strong Futures legislation involves an investment of 3.4 billion Australian dollars (AUD) over 10 years to provide programmes and services to Aboriginal people in regional and remote areas to live strong and independent lives. The Committee notes in this connection the observation by the ACTU that adequate and appropriate consultation should also be reflected in policy development processes. The Committee asks the Government to provide specific information on the measures taken or envisaged to ensure that indigenous peoples have access to land and resources to allow them to engage in their traditional occupations. The Committee also asks the Government to provide information on the practical application of the Stronger Futures in the Northern Territory Act of 2012 and the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act of 2012, as well as any other measures taken to address discrimination against indigenous peoples with respect to employment and occupation, including information on consultation with indigenous peoples in developing policies. Please also provide information on any cases brought under the Racial Discrimination Act.

Equality of opportunity and treatment of indigenous peoples. The Committee notes the Government’s indication that in January 2012, an expert panel established by the Government to consult and report on options for the constitutional recognition of Aboriginal and Torres Strait Islander peoples, presented its report to the Government, and that in February 2012, the Prime Minister announced AUD10 million in funding for Reconciliation Australia to raise community awareness and build support for indigenous constitutional recognition. The Committee also notes the Government’s indication that among the “Closing the Gap” targets, progress has been made as follows: (i) 95 per cent enrolment for indigenous 4-year-old children in remote communities by 2013 is on track, since in 2011, almost 94 per cent of indigenous children in remote areas were enrolled in a pre-school programme; (ii) the gap in apparent retention rates until Year 12 between indigenous and non-indigenous Australians has fallen from 42.5 percentage points in 1995 to 32.2 percentage points in 2010; (iii) the rate of indigenous Australians of workforce age in regional and urban areas has risen to 54.3 per cent in 2008, from 36.4 per cent in 1994. The Government also indicates that the Indigenous Economic Development Strategy 2011–18 identifies five priority areas, including strengthening skills development and business and entrepreneurship. The Committee notes concerns expressed by the ACTU that historically, programmes under the Indigenous Economic Development Strategy have produced few real outcomes, with many participants out of work once the government funding has ceased. Under the Indigenous Employment Programme (IEP), the Indigenous Youth Career Pathways Program commenced in 2012 and provides support to Aboriginal and Torres Strait Islander secondary students to stay in school and undertake school-based traineeships. From July 2013, the IEP and other employment programmes will be replaced by a Remote Jobs and Communities Programme, with funding of AUD1.5 billion.

The Committee notes the range of initiatives being undertaken in some of the states and territories to promote equality of opportunity and treatment of indigenous peoples and address discrimination. The Committee notes in particular that in New South Wales, a Career Pathway Indigenous Jobs Market Programme 2012 provides employers the opportunity to identify and engage with indigenous jobseekers. In the public sector, an Aboriginal Employment Action Plan 2009–12 provides strategies, including for removing barriers to indigenous people in the recruitment process. As of June 2011, a national target of 2.6 per cent indigenous employment in the public sector by 2015 was achieved in New South Wales. Following a commitment made in 2009 to employ an additional 2,229 indigenous people in the public sector over four years, by the end of December 2011, about 75 per cent of the extra positions had been filled. In Victoria, funding of AUD4.26 million has been committed to place at least 350 indigenous people in employment by June 2014. An Aboriginal Public Sector Employment and Career Development Action Plan 2010–15 focuses on building pathways for indigenous people between education and public sector employment. The “Works for Indigenous Jobseekers” programme engaging aboriginal employment brokers also continues. In Queensland, key achievements of a Reconciliation Action Plan include involving indigenous communities in taking action towards reconciliation and addressing issues of discrimination. In South Australia, a comprehensive set of programmes for aboriginal people and employers are funded addressing indigenous discrimination and disadvantage in employment. In the Northern Territory, a Public Sector Indigenous Employment and Career Development Strategy 2010–12 is being implemented, and a new strategy is being developed. In the Australian Capital Territory, an Employment Strategy for Aboriginal and Torres Strait Islander People has been newly developed. The Committee asks the Government to continue to provide information on the measures taken by all the states and territories to address discrimination and promote equality in employment and occupation of indigenous peoples, and to indicate the results achieved. The Committee also asks the Government to continue to provide information on the impact of the measures undertaken at the federal level, including with regard to the “Closing the Gap” targets, and to provide detailed information on the Remote Jobs and Communities Programme, and the Commonwealth Indigenous Economic Development Strategy 2011–18, including concrete results achieved, as well as information on any other federal initiatives aimed at promoting equality of indigenous peoples and addressing discrimination against them. Please also continue to provide information on the status of the process to recognize specifically Aboriginal and Torres Strait Islander peoples in the Constitution.

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