Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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 22 September 2015.

Articles 1 and 2 of the Convention. Legislative developments and enforcement. Gender equality. Federal. The Committee notes that in its observations the ACTU emphasizes the importance of maintaining coherent and effective legislative provisions with vigorous monitoring mechanisms in light of the findings of widespread discrimination in practice, in particular related to pregnancy and parental leave, in the national review undertaken by the Sex Discrimination Commissioner, on behalf of the Australian Human Rights Commission (AHRC). The ACTU points out that the adverse action provisions of the Fair Work Act 2009 are in need of strengthening and that they apply only to the extent the adverse treatment is a breach of the relevant State anti-discrimination law and therefore are subject to State-based inconsistencies and onerous burden of proof requirements. The Committee notes the Government’s indication that the proposal to consolidate the five Commonwealth anti-discrimination Acts into a single comprehensive federal law was withdrawn and does not form a part of the current Government policy. Thus, the provisions of the Fair Work Act 2009 (sections 351 and 361) thus continue to be limited (in a way reflecting State-based inconsistencies) (as indicated above). The Government reports that amendments have been made to the Fair Work Act 2009 through the Fair Work Amendment Act 2012, the Fair Work Amendment Act 2013 and the Fair Work Amendment Regulation 2013 (No. 2). The Committee notes that many of these amendments respond to the recommendations made by the Review Panel of the Fair Work Act 2009 concerning family friendly provisions which the Committee addresses in its observation under the Workers with Family Responsibilities Convention, 1981 (No. 156). The Committee also refers to its previous observation under the Equal Remuneration Convention, 1951 (No. 100), where it noted the amendments to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) which are aimed at streamlining workplace gender equality reporting requirements from the 2015–16 reporting period onwards while still meeting the gender policy objectives of the legislation. According to the ACTU, in addition to reducing reporting on remuneration, information relating to the number of applications and interviews conducted and the number of requests and approval of leave is no longer collected. The Committee asks the Government to continue to report on amendments made to the Fair Work Act 2009, its application in practice particularly related to any findings of discrimination. The Government is also asked to report on the application in practice of the federal anti-discrimination laws. The Committee also asks the Government to report on any developments relating to the adoption of comprehensive anti-discrimination legislation at the federal level. Further to its previous observation under Convention No. 100, the Committee asks the Government to provide information on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) and their impact in light of the requirements of this Convention, in particular, that effective equality of opportunity and treatment be ensured.

States. Victoria. Discrimination based on religion. The Committee recalls from its previous comment the concern raised over sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010, which provides exemptions to the prohibition of discrimination for religious bodies and schools that conform to the doctrines, beliefs or principles of a religion, or when it is reasonable to avoid injury to the religious sensitivities of adherents to the religion. The Committee notes the Government’s reply that the Victorian Government is committed to amending the religious exemptions in the Equal Opportunity Act 2010 to reinstate an “inherent requirements” test for employment by a religious body or religious school. The Committee asks the Government to provide information on any amendments to the Equal Opportunity Act 2010 with a view to bringing the provisions regarding religious exemptions into conformity with the Convention by establishing an “inherent requirements” test.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. Federal. The Committee recalls that for a number of years it has been raising issues in its observations related to restrictions on the rights of indigenous peoples to land and property recognition and use. The Committee notes from the Government’s report that the Council of Australian Governments (COAG) announced in 2014 that it would conduct an urgent investigation into indigenous land administration and use, to enable traditional owners to develop their land and to provide jobs and economic advancement for indigenous peoples, and that an Expert Indigenous Working Group was established in 2015 to provide guidance to the investigation, including through leadership on consultations and engagement with indigenous stakeholders. The Committee notes that, on 11 December 2015, the COAG published its report on its investigation into indigenous land administration. The investigation identified that indigenous land can and does support economic development and that the land systems are in a period of transition from a focus on recognition of rights to the use of rights for economic development. The report identifies five key areas where governments should focus their efforts: gaining efficiencies and improving effectiveness in the process of recognizing rights; supporting bankable interests in land; improving the process for doing business on indigenous land and land subject to native title; investing in the building blocks of land administration; and building capable and accountable land holding and representative bodies. The report makes six key recommendations to take forward this agenda, including many proposed amendments to the Native Title Act 1993. The Committee also notes that the AHRC facilitated an indigenous leaders’ round table on property rights, in May 2015, in Broome to better enable economic development within the indigenous estate. The Committee notes that the National Anti-Racism Strategy includes a nationwide public awareness campaign against racism and the promotion of anti-racism initiatives including a training tool on systematic racism against Aboriginal and Torres Strait Islander peoples and a Workplace Cultural Diversity Tool. Recalling that the Racial Discrimination Act applies to discrimination against indigenous peoples in employment and occupation, the Committee notes the Government’s indication that it is unaware of any significant indigenous employment discrimination cases brought under the Act. The Committee places importance on the new emphasis on the use of indigenous rights in land for the promotion of economic development including employment and occupational opportunities of indigenous peoples. The Committee asks the Government to provide specific information on the follow-up implementation to the COAG Report recommendations and the Broome consultations and any other steps taken to ensure that indigenous people have access to land and resources to allow them to engage in their traditional occupations and to access employment without discrimination. It also asks the Government to provide information on the impact of the measures introduced to implement the National Anti-Racism Strategy and the Racial Discrimination Act, and to monitor any related cases of discrimination submitted by members of indigenous peoples.

Equality of opportunity and treatment of indigenous peoples. Constitutional recognition. The Committee recalls the steps undertaken to examine, raise awareness and build support for the constitutional recognition of Aboriginal and Torres Strait Islander peoples, including the adoption of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013. It further notes that the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples tabled its final report which recommended that a referendum on constitutional recognition should be held when it has the greatest chance of success, without specifying any time frame. The Committee notes that a Referendum Council was established to give advice on Aboriginal and Torres Straight Island Peoples, which issued a final report on 30 June 2017. It notes the “Uluru Statement from the Heart”, adopted at the National Constitutional Convention 2017, by the Aboriginal and Torres Straight Island Peoples calling for a “First Nations Voice”, and the Referendum Council’s call to amend the Constitution to provide for a national indigenous representative assembly to constitute a “Voice to Parliament”. The Committee notes, however, that the Government rejected the Referendum Council’s call for constitutional recognition. The Committee asks the Government to continue to provide information on the status of the process to recognize specifically Aboriginal and Torres Strait Islander peoples in the Constitution.

National policy and programmes for indigenous peoples. The Committee notes the “Closing the Gap Strategy” which is a formal commitment by federal, state and territory governments to achieve equality for Aboriginal and Torres Strait Islander peoples within 25 years. The COAG has set measureable targets to monitor improvements in the strategy which include halving the gap in employment outcomes between indigenous and non-indigenous persons by 2018. The Committee notes from the Closing the Gap Prime Minister’s Report of 2017 that the employment target is not being met, and that while there has been an increase in the employment rate of indigenous peoples since 1994, there has been a decline since 2008. In 2014–15 only 35 per cent of indigenous peoples of working age in very remote areas were employed compared to 57.5 per cent of those living in major cities. To improve progress, the strategy calls for employment programmes to continue to link indigenous Australians with employment targets across the public sector and large infrastructure projects, and to help build the skills required for sustainable employment. In this regard the Committee notes that the Indigenous Procurement Policy has awarded contracts to 493 indigenous businesses. It also notes that under the Indigenous Advancement Strategy, the Government allocated 4.9 billion Australian dollars in 2015–16 to fund and deliver a range of programmes aimed at jobs, land and economic development. It also notes the new agreement on Northern Territory Remote Aboriginal Investment on getting children to school, adults into work and making communities safer, and the new community development programme which aims to ensure employment services are tailored to the unique labour markets and economic conditions in remote Australia.

States. 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 to address discrimination. The Committee notes the detailed information in the Social Justice and Native Title Report 2016, on the stolen wage reparations programmes undertaken in Queensland, New South Wales (NSW) and Western Australia to establish inquiries and to provide trusts and claims procedures for indigenous peoples whose economic participation and wages have been restricted in those jurisdictions regarding Queensland, the Committee notes the adoption of the Multicultural Recognition Act No. 1 of 2016 which requires the preparation of a multicultural policy and a multicultural action plan to implement the policy. It also notes that, in 2015, the NSW Public Service Commission launched the NSW Public Sector Aboriginal Employment Strategy 2014–17 to increase the Aboriginal workforce across the NSW public sector. In Western Australia, the Aboriginal Employment Strategy has been developed by the Public Service Commission to attract Aboriginal people to public sector training and employment. Further in South Australia, the Strategic Plan provides a set of targets addressing discrimination against indigenous peoples including in employment and occupation; and in Tasmania, the minister in charge of the state service has issued a directive regarding the employment of Aboriginal and Torre Strait Islanders.

Noting that despite the numerous measures and initiatives, the indigenous peoples continue to be disadvantaged and that employment targets are not met, the Committee asks the Government to continue to reinforce its efforts and to provide information on any evaluations or reviews aimed at assessing and improving the impact of these measures and initiatives on employment and occupation outcomes. It also asks the Government to continue to provide detailed information on the policies and programmes developed and measures adopted to address discrimination and to promote equality of opportunity and treatment in employment and occupation for indigenous peoples at the federal, state and territory levels and their impact, including with regard to the “Closing the Gap” targets.

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