Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Previous comment.

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received with the Government’s report.

Article 1(1)(a) of the Convention. State level. New South Wales. Pregnant women. The Committee notes the information provided by the Government in its report on the application in practice of the Justice Legislation Amendment Act 2018, and that, in the period between 2018 and 2022, the Anti-Discrimination NSW received 82 discrimination complaints on the grounds of pregnancy and breastfeeding. The Government also indicates that SafeWork NSW provides information and guidance for pregnant workers, including rights and responsibilities at work, and protections from discrimination due to pregnancy. The Committee takes due note of the information provided by the Government.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee notes the Government’s indication that the Disability Discrimination Commissioner launched the IncludeAbility project in 2021, a three-year project aimed at increasing the capacity of employers to successfully employ, retain and promote people with disability. The IncludeAbility Project focuses on four key components: (1) an Employer Network of executive leaders from some of Australia’s largest organisations and businesses; (2) an Ambassador Advisory Group, comprised of people with lived experience of disability; (3) a web portal hosting a range of employment and workplace resources to support employers, employees, and prospective employees with disability; and (4) the opportunity for Employer Network members to participate in innovative pilot employment programmes. The Committee takes note of the Government statement that, in 2021, the labour force participation rate for people with disability aged 15–64 years was at 53.4 per cent, compared to 84.1 per cent for people the same age without disability. The Committee further notes, from the observations of the ACTU, that there are ongoing proceedings in front of the Fair Work Commission (FWC) made by the ACTU and the Association for Employees with Disabilities Legal Centre. The ACTU and the Association for Employees with Disabilities Legal Centre contend that the Fair Work Act 2009 does not permit the FWC to set rates of pay for employees with a disability in a manner that discriminates against them for circumstances connected with their disability, other than their productive capacity. The ACTU explains that the Government disagrees with this position, and if the Commonwealth’s position is proved to be the legally correct view of the operation of the Fair Work Act 2009, there will be a need for corrective action to ensure the objectives of the Convention are realised.

State level. The Committee takes note of the data provided by the Government on the employment rate of persons with disabilities in certain states. It notes that in New South Wales (NSW), the estimated representation of government sector employees with disability in 2021 was 2.4 per cent. The Government adds that NSW workforce profile data for 2021 shows that people with a disability accepted job offers at a lower salary rate of 73.5 per cent compared to 86.9 per cent of people with no disability. In 2021, the remuneration commencement rate for people with a disability increased 8.4 per cent points, reducing the gap in commencement rate between people with disability and those with no disability to 0.4 per cent. In Victoria, in 2021, persons with disabilities represented an estimated 5.2 per cent overall of public sector employees, and 7.3 per cent of all employed Victorians aged 15–64 years. The Committee notes with interest that the Equal Opportunity Act 2010 was amended in 2021 to introduce a clear requirement to make reasonable adjustments in the workplace for contract workers with a disability. The Government indicates that the Victorian economic participation plan for people with disability 2018–20 sets a target employment participation rate across the Victorian Public Service of 6 per cent by 2020 and 12 per cent by 2025. The Committee further notes, that the data from the Western Australia Government Sector Workforce 2020–21 Report states that the representation of people with disability in the public sector workforce is as low as 1.5 per cent. The Government also indicates that, in South Australia, the Office of the Commissioner for Equal Opportunity 2020-21 Annual Report, revealed there were 46 complaints involving disability discrimination during that reporting period, equating to 25 per cent of all accepted complaints to the Office, with most complaints relating to people living with a disability trying to access goods and services or employment. The Committee asks the Government to continue to provide information on: (i) any measures taken at federal and state levels to promote equal opportunity and treatment for persons with disabilities in education, vocational training and employment, particularly with respect to conditions of work and wages; (ii) the results achieved by the IncludeAbility Project in reducing the prevalence of discrimination against persons with disabilities in employment; (iii) the decision upheld by the Fair Work Commission on the on-going proceedings relating to setting rates of pay for people with disabilities; and (iv) statistical data on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Age. The Committee refers to its previous comment and takes note of the Government’s indication that there has been no change since its previous report.

Articles 2 and 3. Equality of opportunity and treatment between men and women. Occupational segregation. The Committee notes the Government’s information on the various measures taken to reach gender equality in the workplace. Among others, the Government refers to a review of the Workplace Gender Equality Act 2012, undertaken in late 2021 to consider how progress on gender equality in workplaces could be accelerated and how employers’ reporting to the Workplace Gender Equality Agency (WGEA) could be streamlined. The Government states that it has committed to an ambitious gender equality agenda to promote equality of opportunity for women and men, including through: (1) the development of a National Strategy to Achieve Gender Equality; (2) the establishment of an independent Women’s Economic Security Taskforce; and 3) delivering Gender Responsive Budgeting. The Committee notes the organization, in September 2022, of an Australian Jobs and Skills Summit to investigate and report on issues such as preparing for the jobs of the future; the quality of work; and underemployment, women’s participation, job insecurity, long-term unemployment and stagnant wages. Ensuring women have equal opportunities and equal pay was a key focus of the Summit. The Committee also notes the information provided by the Government on the distribution of men and women in employment in different sectors and positions, in the private and public sectors. It notes that, as of June 2022, the percentage of women on Australian Government board positions was 50.2 per cent, a 5.7 percentage point increase since 2017. However, the Committee notes that women continue to be underrepresented in managerial positions (38.2 per cent of women in 2021), and in occupations traditionally considered for males, such as machinery operators and drivers (where women represented 11.8 per cent of the workforce in 2021). They also remain overrepresented in occupations traditionally considered for females, such as clerical and administrative workers (where they represented 73.3 per cent of the workforce). The Committee asks the Government to pursue its efforts and to continue to provide information on: (i) any legislative, policy or other measures taken to promote equality of treatment and opportunity between men and women in law and in practice; (ii) the results achieved by such measures, in particular in order to address vertical and horizontal occupational gender segregation, by enhancing women’s access to a wider range of jobs and to jobs at higher levels, including in sectors where women are less represented such as the armed forces for example; and (iii) the outcomes of the Australian Jobs and Skills Summit with respect to ensuring equal opportunity between men and women in employment and occupation. The Committee also asks the Government to continue to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, in both the public and private sectors.

The state level. The Committee welcomes the measures implemented by several states, such as in Queensland, New South Wales, Victoria, Western Australia and South Australia to take affirmative actions to promote the representation of women at senior leadership level, in particular in the public sector. It notes, in particular, the adoption of the Gender Equality Act 2020 in Victoria, which requires public sector organizations to take positive action towards promoting workplace gender equality and to consider and promote gender equality in their policies, programmes and services. The Act requires the development and implementation of a Gender Equality Action Plan (GEAP) every four years based on the results of a workplace gender audit covering seven key gender equality indicators. Victoria also launched the Women in Construction Strategy (2022), designed to increase women’s participation in the trades and semi-skilled ‘blue-collar’ work. It also notes that the Queensland Anti-Discrimination Act is currently under review by the Queensland Human Rights Commission. The Committee asks the Government to continue to provide information on the policies and programmes implemented to promote equality of opportunity and treatment between men and women in employment and occupation and address occupational gender segregation at state and territory levels, as well as on their impact.

New South Wales. The Committee previously noted that the Government Sector Employment Act 2013, No. 40, deleted the section on equal employment opportunity and the mandate for government agencies to prepare equal employment management plans, as set out in the Anti-Discrimination Act, 1977. It further noted that the Act provides that employees in the Government sector should be recruited and promoted on merit, and that affirmative action measures may only be taken to facilitate the employment of persons with a disability, Aboriginal people, Torres Strait Islanders and persons under the age of 25. The Committee notes the Government’s indication that amendments will be made to ensure that paid parents leave provisions are gender neutral. Noting however that the Government does not address the issues previously raised, the Committee again asks the Government to indicate how discrimination is prohibited and equal opportunity in employment is ensured under the Anti-Discrimination Act, 1977, and to supply information on the application of the 2013 Act in practice, including any implementing regulations, as well as any decisions issued by tribunals or administrative bodies.

Tasmania. Gender Equality. The Committee previously noted the 2016 Government’s commitment to a target of 50 per cent of women’s representation across Government’s boards and committees by June 2020, which was supported by the 2015–20 Five Year Plan and the Tasmanian Women’s Plan 2013–18. It notes the Government’s indication that women’s representation on all Government boards and committees has increased from 40 per cent in April 2018 to 48.3 per cent in June 2021. The Committee also notes that, in 2021, the Tasmanian Government released the Leadership and Participation for Women Action Plan 2021–23 with the aim of improving women’s participation in decisions which affect their lives and communities; providing opportunities for skills development and employment pathways; facilitating leadership development; and promoting the recognition of women’s achievements. The Committee asks the Government to continue to provide information on the development, monitoring and implementation of legislation, policies and plans adopted at the state level to promote gender equality.

Discrimination on the grounds of race, colour, national extraction and religion. The Committee takes note of the various measures taken by the Government to address discrimination on the grounds of race, colour, national extraction and religion. In particular, the Committee notes that the AHRC is developing a National Anti-Racism Framework, which will be a long-term, central reference point to guide actions on anti-racism by government institutions, NGOs, business, educators, health professionals, police, other justice authorities, civil society and the community. It notes that the Race Discrimination Commissioner, along with the AHRC, work with government institutions, businesses, community partners, education providers, the media and workplaces to help individuals and organizations understand their rights and meet their legal responsibilities to combat racism and build social cohesion in Australia. The Committee also notes the Government’s information on the ‘Racism. It Stops With Me’ campaign, administered by the AHRC, relaunched in 2022, and which includes a Workplace Cultural Diversity Tool to support employers in improving their approach to cultural diversity and inclusion in the workplace. The campaign website includes information and resources including practical tips about taking anti-racist action in workplaces. The Committee further notes that the Fair Work Ombudsman (FWO) has developed multiple resources to ensure migrant workers understand their rights and know where they can get help if they have concerns, including: (1) a dedicated section of the FWO website for migrant workers with a range of professionally translated information, resources and videos that are tailored to their needs; (2) a free Translating and Interpreting Service available to anyone who has difficulty speaking or understanding English; and (3) proactive engagement activities to assist migrant workers to understand workplace rights and entitlements. The Committee asks the Government to continue to provide information on: (i) the proactive steps taken to prevent and address discrimination on the grounds of race, colour, national extraction, and religion, in particular by addressing bias and negative attitudes that may lead to discrimination and by promoting equality of opportunity and treatment in employment and occupation of migrant workers, while ensuring that they have access to effective protection and remedies; and (ii) the number, nature and outcome of cases or complaints of discrimination on the grounds of race, colour, national extraction or religion detected or dealt with by the labour inspectors, the courts or any other competent authority.

The state level. Following the launch of a “RecruitSmarter pilot”, in Victoria, to introduce a de-identification trial within selected organizations to address unconscious bias in the recruitment process, the Committee notes the Government’s indication that the key findings of this de-identification trial were as follows. When the trial is implemented: (1) applicants born overseas are 8 per cent more likely than before to be shortlisted for a job; (2) female job applicants are 8 per cent more likely to be shortlisted and hired; (3) applicants from suburbs of lower socioeconomic status are 9.4 per cent more likely to progress through the selection process and receive a job offer; and (4) the advantage men had over women in being shortlisted went down from 30 per cent to 6 per cent. The Government states that the report also found that training about unconscious biases improves staff intention and capacity to support diversity and inclusion in the workplace. The Committee asks the Government to provide information on any follow-up measures taken or envisaged, as a result of the assessment made of the introduction of a de-identification recruitment process, and if it envisaged for example to expand this trial to other organizations.