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Sex Discrimination Amendment (Pregnancy and Work) Bill 2003

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2002-2003

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

____________________

 

SEX DISCRIMINATION AMENDMENT (PREGNANCY AND WORK) BILL 2002

____________________

 

SCHEDULE OF THE AMENDMENTS MADE BY THE SENATE TO WHICH THE HOUSE OF REPRESENTATIVES HAS DISAGREED

 

(1)     Dem (5) [Sheet 3031 Revised]

          Title, page 1 (lines 1 and 2), omit “ to amend the Sex Discrimination Act 1984 ”, substitute “ relating to pregnancy and work ”.

(2)     Opp (1) [Sheet 3032]

          Schedule 1, page 3 (after line 3), before item 1, insert:

1A  Paragraph 3(b)

Omit “or potential pregnancy”, substitute “, potential pregnancy or breastfeeding”.

(3)     Opp (2) [Sheet 3032]

          Schedule 1, page 3 (after line 3), before item 1, insert:

1B  Subsection 4(1) (after the definition of administrative office )

Insert:

breastfeeding includes the act of breastfeeding a child, expressing milk, a characteristic that appertains generally to women who are breastfeeding, or a characteristic that is generally imputed to women who are breastfeeding.

(4)     Dem (1) [Sheet 3031 Revised]

          Schedule 1, page 3 (after line 3), before item 1, insert:

1BA  Subsection 4(1) (definition of Commonwealth employee )

Repeal the definition, substitute:

Commonwealth employee , for the purposes of this Act, means a person who:

                     (a)  holds an office of appointment in the Commonwealth Public Service or is employed in a temporary capacity in a Department; or

                     (b)  holds a statutory or administrative office; or

                     (c)  is employed or engaged by a public authority of the Commonwealth; or

                     (d)  holds an office or is appointed under the High Court of Australia Act 1979 , the Federal Court of Australia Act 1976 or the Federal Magistrates Act 1999 ; or

                     (e)  is a member of the Commonwealth Parliament; or

                      (f)  holds an office or appointment in the Commonwealth Teaching Service or is employed as a temporary employee under the Commonwealth Teaching Service Act 1972 ; or

                     (g)  is employed under the Australian Security Intelligence Organisation Act 1979 , the Commonwealth Electoral Act 1918 or the Naval Defence Act 1910 ; or

                     (h)  is a member of the Defence Force.

1BB  Subsection 4(1) (definition of employment )

Repeal the definition, substitute:

employment includes:

                     (a)  part-time and temporary employment; and

                     (b)  employment in a voluntary capacity or for consideration other than direct financial remuneration; and

                     (c)  work under a contract for services; and

                     (d)  work as a Commonwealth employee; and

                     (e)  work under the provisions of the Social Security Legislation Amendment (Work for the Dole) Act 1997 .

(5)     Dem (2) [Sheet 3031 Revised] ( As amended by Opp (34)-(36) [Sheet 3032] )

          Schedule 1, page 3 (after line 7), after item 1, insert:

1C  At the end of section 7A

Add:

             (2)  For the purposes of subparagraph (1)(b)(i), but without otherwise limiting that provision, the family responsibilities of an employee include an intention to adopt a child, or the process of adopting a child.

1D  Section 13

Repeal the section.

1E  Subsections 38(1) and (2)

Omit “, marital status or pregnancy” (wherever occurring), substitute “or marital status”.

1EA  Subsection 38(3)

Omit “or pregnancy”.

1EB  At the end of section 38

Add:

             (4)  To avoid doubt, in this section, a reference to a person’s sex or marital status does not include a reference to pregnancy or potential pregnancy.

(6)     Opp (6) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1F  After section 7

Insert:

7AA  Discrimination on the ground of breastfeeding

             (1)  For the purposes of this Act, a person (the discriminator ) discriminates against a woman (the aggrieved woman ) on the ground that the aggrieved woman is breastfeeding if, because the aggrieved woman is breastfeeding, the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not breastfeeding.

             (2)  For the purposes of this Act, a person (the discriminator ) discriminates against a woman (the aggrieved woman ) on the ground that the aggrieved woman is breastfeeding if the discrimination imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also breastfeeding.

             (3)  This section has effect subject to sections 7B and 7D.

(7)     Opp (7) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1G  Subsection 10(2)

Omit “or potential pregnancy”, substitute “, potential pregnancy or breastfeeding”.

(8)     Opp (8) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1H  Subsection 11(2)

Omit “or potential pregnancy”, substitute “, potential pregnancy or breastfeeding”.

(9)     Opp (10) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1K  Subsection 14(1)

After “potential pregnancy”, insert “or because the person is breastfeeding her child”.

(10)   Opp (11) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1L  Subsection 14(2)

After “potential pregnancy”, insert “or because the employee is breastfeeding her child”.

(11)   Opp (12) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1M  Subsection 15(1)

After “potential pregnancy”, insert “or because the person is breastfeeding”.

(12)   Opp (13) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1N  Subsection 15(2)

After “potential pregnancy”, insert “or because the commission agent is breastfeeding”.

(13)   Opp (14) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1P  Section 16

After “potential pregnancy”, insert “or because the contract worker is breastfeeding”.

(14)   Opp (15) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1Q  Subsections 17(1) and (2)

After “potential pregnancy” (wherever occurring), insert “or because the person is breastfeeding”.

(15)   Opp (16) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1R  Subsection 17(3)

After “potential pregnancy”, insert “or because the partner is breastfeeding”.

(16)   Opp (17) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1S  Section 18

After “potential pregnancy”, insert “or because the person is breastfeeding”.

(17)   Opp (18) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1T  Subsection 19(1)

After “potential pregnancy”, insert “or because the person is breastfeeding”.

(18)   Opp (19) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1U  Subsection 19(2)

After “potential pregnancy”, insert “or because the member is breastfeeding”.

(19)   Opp (20) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1V  Section 20

After “potential pregnancy”, insert “or because the person is breastfeeding”.

(20)   Opp (21) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1W  Subsection 21(1)

After “potential pregnancy”, insert “or because the person is breastfeeding”.

(21)   Opp (22) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1X  Subsection 21(2)

After “potential pregnancy”, insert “or because the student is breastfeeding”.

(22)   Opp (23) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1Y  Subsection 22(1)

After “potential pregnancy”, insert “or because that other person is breastfeeding her child”.

(23)   Opp (24) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1Z  Subsections 23(1) and (2)

After “potential pregnancy” (wherever occurring), insert “or because that other person is breastfeeding”.

(24)   Opp (25) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1ZA  Subsection 24(1)

After “potential pregnancy”, insert “or because that other person is breastfeeding”.

(25)   Opp (26) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1ZB  Subsection 25(1)

After “potential pregnancy”, insert “or because the person is breastfeeding”.

(26)   Opp (27) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1ZC  Subsection 25(2)

After “potential pregnancy”, insert “or because the member is breastfeeding”.

(27)   Opp (28) [Sheet 3032]

          Schedule 1, page 3 (after line 7), after item 1, insert:

1ZD  Section 26

After “potential pregnancy”, insert “or because that other person is breastfeeding”.

(28)   Opp (29) [Sheet 3032]

          Schedule 1, item 2, page 3 (line 20), after “pregnancy”, insert “or because that other person is breastfeeding”.

(29)   Opp (30) [Sheet 3032]

          Schedule 1, item 2, page 3 (line 24), omit “or potentially pregnant”, substitute “, potentially pregnant or breastfeeding”.

(30)   Opp (31) [Sheet 3032]

          Schedule 1, page 3 (after line 34), after item 2, insert:

2A  At the end of subsection 27(2)

Add:

                ;  but it is unlawful to discriminate in a recruitment process on the basis of that information.

(31)   Opp (32) [Sheet 3032]

          Schedule 1, page 4 (after line 6), at the end of the Schedule, add:

4 After subsection 27(2)

Insert:

          (2A)  To avoid doubt, it is unlawful for a person to ask another person a question (whether orally or in writing) in connection with the employment or potential employment of that other person, which might reasonably be understood as intended to elicit information about that person’s intentions in relation to pregnancy, potential pregnancy or in relation to meeting that person’s family commitments.

(32)   Dem (3) [Sheet 3031 Revised] ( As amended by Opp (33) [Sheet 3032] )

          Schedule 1, page 4 (after line 6), at the end of the Schedule, add:

4A  After section 27

Insert:

27A  Pregnancy equity standards

             (1)  The Minister may formulate standards, to be known as pregnancy equity standards, in relation to the employment of women who are pregnant or potentially pregnant, consistent with and to give effect to the Sex Discrimination Act 1984 .

(2)     Pregnancy equity standards formulated in accordance with this section are to be laid before each House of the Parliament within 15 sitting days of that House after the pregnancy equity standards are formulated and take effect only as provided by the following provisions of this section.

(3)     If:

                     (a)  notice of a motion to amend the pregnancy equity standards is given in either House of the Parliament within 15 sitting days after the pregnancy equity standards have been laid before that House; and

                     (b)  the pregnancy equity standards, whether or not as amended, are subsequently approved by that House; and

                     (c)  the other House approves the pregnancy equity standards in the form approved by the first-mentioned House;

the pregnancy equity standards take effect in the form so approved from the day on which the second House approves the pregnancy equity standards in that form.

             (4)  If no notice of a motion to amend the pregnancy equity standards is given in the House of Representatives or the Senate within 15 sitting days of the particular House after the pregnancy equity standards have been laid before that House, the pregnancy equity standards take effect from the day immediately after that 15th sitting day or, where that day differs in respect of each House, the later of those days.

27B  Unlawful to contravene pregnancy equity standards

                   It is unlawful for a person to contravene a pregnancy equity standard.

5  After section 48

Insert:

48B  Employment advertisements—standing to bring complaints

                   A complaint in writing alleging that:

                     (a)  a person has done an act that is unlawful by virtue of paragraph 14(1)(a); and

                     (b)  that act is constituted by an advertisement;

may be lodged with the Commission by any person, notwithstanding that the complainant is not a person directly affected by the advertisement.

48C  Referral of discriminatory awards to the Australian Industrial Relations Commission—own motion

                   Where the Commissioner has reason to believe that an award or agreement contains a provision or a number of provisions which permit discriminatory acts, the Commissioner may refer the award or agreement to the Australian Industrial Relations Commission.

(33)   Opp (37) [Sheet 3032]

          Schedule 1, page 4 (after line 6), at the end of the Schedule, add:

9 Section 39

After “pregnancy”, insert “or because the person is breastfeeding”.

(34)   Opp (38) [Sheet 3032]

          Schedule 1, page 4 (after line 6), at the end of the Schedule, add:

10 Section 48

Omit “or potential pregnancy” (wherever occurring), substitute “, potential pregnancy or breastfeeding”.

(35)   Opp (40) [Sheet 3032]

          Page 4 (after line 6), at the end of the bill, add:

Schedule 2— Human Rights and Equal Opportunity Commission Act 1986

1  After paragraph 46PO(4)(d)

Insert:

                   (da)  where the unlawful discrimination relates to pregnancy or potential pregnancy—an order requiring a respondent to pay to an applicant exemplary or punitive damages;

 

 

____________________

 

HOUSE OF REPRESENTATIVES REASONS FOR DISAGREEING TO THE SENATE AMENDMENTS

         

Senate Amendment Number (1)

This amendment passed by the Senate would amend the long title of Bill so that it reads ‘A Bill for an Act relating to pregnancy and work, and for related purposes’.

The Government’s long title more accurately indicates that the provisions of the Bill relate to the Sex Discrimination Act (SDA), and related purposes.

The Senate amendment is inappropriate and unnecessary.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment Numbers (2), (3), (6) - (29), (33), (34)

These amendments passed by the Senate would amend or insert no less than 28 separate provisions relating to breastfeeding. 

The Government considers (based on advice from the Australian Government Solicitor) that discrimination on the ground of breastfeeding is already unlawful under the Act (breastfeeding being a characteristic that appertains generally to women). 

However, the Government recognises that the HREOC Report identified some confusion as to whether discrimination on the ground of breastfeeding is sex discrimination.  The Bill gives effect to the relevant HREOC recommendation by including an amendment that will clarify the operation of the Act in this regard.  The Bill amends the definition of sex discrimination in section 5 of the Sex Discrimination Act to make it clear that breastfeeding is a characteristic that pertains generally to a woman and consequently can be a ground of sex discrimination under the Act.

These amendments passed by the Senate are cumbersome and unnecessary.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment Number (4)

This amendment passed by the Senate would broaden the definition of Commonwealth employee and include voluntary workers and work for the dole participants in the definition of employment

With respect to Commonwealth employees , the Government accepted the relevant HREOC recommendation and examined the coverage of the Sex Discrimination Act with respect to federal statutory appointees, judicial office holders and Members of Parliament.  The Government considers that the pregnancy and potential pregnancy discrimination provisions of the Sex Discrimination Act already cover federal statutory office holders and judicial office holders.  Further, pregnancy and potential pregnancy discrimination against staff of Members of Parliament is already covered by the Sex Discrimination Act.  Further, the Government does not believe pregnancy should be an obstacle to participation in the political arena and it strongly supports the right of pregnant women to take part in political decision-making processes. 

With respect to employment , the Government does not support extending the existing legislated coverage of unpaid workers under the SDA.  Unpaid workers are not specifically excluded from the SDA.  They may be covered by the Act if an employment relationship is found to exist or if they fall within the ambit of the provision relating to discrimination in the provision of goods, services and facilities. The Pregnancy Guidelines issued by the Commission in April 2001 include a discussion of the application of the Sex Discrimination Act to unpaid workers.

This amendment passed by the Senate is unnecessary and inappropriate.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment Number (5)

This amendment passed by the Senate would include as a family responsibility an intention to adopt or the process of adoption.  The Government notes that prospective adoption raises broader policy questions than those considered in the Pregnant and Productive Report, is an issue for both men and women, and is primarily a State matter. 

This amendment passed by the Senate would also remove the exemption for State instrumentalities.  Most employees of State and Territory instrumentalities enjoy similar protection to that afforded under the Commonwealth SDA.  The Constitutional implications are complex.  The Commonwealth’s coverage in relation to these employees would be limited. 

This amendment passed by the Senate would also remove the exemption in relation to pregnancy and potential pregnancy contained in section 38 for educational institutions established for religious purposes.  It is important that an appropriate balance be maintained under the Sex Discrimination Act between the right to equal treatment and the right to freedom of religious practice.  The exemption as currently expressed in the Sex Discrimination Act is not open-ended.  The exemption applies only to actions taken in good faith to avoid injuring the religious susceptibilities of adherents of the relevant religion or creed.  The HREOC Report on Freedom of Religion and Belief recommended that exemptions in the form of those in section 38 of the Sex Discrimination Act be retained. 

This amendment passed by the Senate is inappropriate for the purposes of the current Bill, complex and unnecessary. 

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment Numbers (30) and (31)

These amendments passed by the Senate would amend section 27 with respect to the recruitment process and the use of medical information.

The Government considers that section 27 already prohibits questions intended to elicit information about whether or when a woman intends to become pregnant and/or her intentions in relation to meeting her current or pending family responsibilities and that section 27 already prohibits the use of information gained from medical examinations for a discriminatory purpose.

However, the Government recognises that the Pregnant and Productive Report identified a need for greater clarity in relation to the operation of section 27. The Bill meets that need by redrafting the section in language which is easier to understand, thus clarifying its operation generally and in relation to questions about pregnancy and potential pregnancy specifically.  The Bill includes an example which clarifies that such information may properly be used for occupational health and safety purposes and changes the title of section 27 from “Application forms etc” to “Requests for information” to better reflect the scope of the provision.

The amendments to section 27 of the Act as passed in this House are more comprehensive and have greater clarity than those passed by the Senate.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment Number (32)

The amendment passed by the Senate would empower the Minister to publish enforceable standards in relation to pregnancy and potential pregnancy.

While legislative action to combat discrimination is clearly fundamental to the effective protection of human rights, the Government believes that the most lasting and effective way to reduce breaches of human rights is by changing attitudes, encouraging tolerance and making people aware of their responsibilities to respect and protect human rights.  The Government believes that the best means of achieving this is through education and dissemination of information, rather than through the creation of another legislative regime.  The Pregnancy Guidelines issued by HREOC in April 2001 have made a major contribution to increasing awareness and understanding of the rights and responsibilities of employers and employees regarding pregnancy and potential pregnancy issues in the workplace.  The Guidelines provide practical guidance in relation to the scope and operation of the Sex Discrimination Act in its application to pregnancy discrimination issues.  The Guidelines are complemented by a booklet on pregnancy discrimination released by the Government in April 2002 entitled “Working your way through pregnancy”.  The Government strongly believes that such educative initiatives are a more effective way of achieving cultural change and improvements in equal employment opportunity for women than the imposition of legislative sanctions.

The amendments passed by the Senate would also give standing to any person to lodge with the Commission a complaint about advertising.

Again, the Government considers that the most effective means of preventing discrimination in advertising is through education and dissemination of information to employers.  The Sex Discrimination Act currently prohibits unlawful discrimination in the arrangements made for recruitment purposes.  In addition, the Sex Discrimination Act makes it an offence to advertise in a discriminatory manner.  The Guidelines prepared by the Sex Discrimination Commissioner will be the most effective means of ensuring that employers are aware of their obligations not to advertise in a discriminatory manner.  The Government notes that the Commission’s Report stated that while pregnant and potentially pregnant women are discriminated against in recruitment processes, complaints of discrimination in advertising are rarely made.

The amendments passed by the Senate would also allow the Sex Discrimination Commissioner to refer on her own motion an award or agreement to the Australian Industrial Relations Commission.

There are already a variety of provisions in the Workplace Relations Act and the Human Rights and Equal Opportunity Act that provide avenues for the AIRC to remedy or vary any discriminatory provision in an award or certified agreement.  The Government considers that these protections for women are comprehensive and this Senate amendment is unnecessary.

This amendment passed by the Senate is unnecessary and inappropriate.

Accordingly, the House of Representatives does not accept this amendment.

Senate Amendment Number (35)

The amendment passed by the Senate would insert a new paragraph in the Human Rights and Equal Opportunity Act to enable awards of exemplary or punitive damages.

The Commonwealth human rights legislative regime is remedial rather than punitive.  The Government considers that an educative approach to sex discrimination issues is more effective than a heavy handed or punitive approach in individual cases.  The Human Rights and Equal Opportunity Act provides ample scope for a court to make appropriate orders in the event of unlawful discrimination.  Courts can award general damages for injury to feelings and aggravated damages which reflect the severity of the conduct and its consequences.  Punitive damages are rarely awarded by Australian courts.  Such a provision would therefore be unlikely to have any significant deterrent effect on behaviour.

This amendment passed by the Senate is unnecessary and inappropriate.

Accordingly, the House of Representatives does not accept this amendment.

 

 

 

                                                                                              I C HARRIS

                                                                      Clerk of the House of Representatives

House of Representatives

10 September 2003