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Legal and Constitutional Affairs Legislation Committee
23/01/2013
Human Rights and Anti-Discrimination Bill 2012

LYONS, Mr Tim, Assistant Secretary, Australian Council of Trade Unions

TKALCEVIC, Ms Belinda, Legal and Industrial Officer, Australian Council of Trade Unions

[09:35]

CHAIR: I welcome you both. We have numbered your submission 310 for our purposes on the website. I will ask you to speak to that submission very briefly, and then we will go to questions.

Mr Lyons : Thank you, Senator. I am mindful of your injunction to be quick. It is clear from the written submission that we filed that the fundamental capacity in which we comment on this bill is in the context of the workplace and the rights of employees. Our fundamental position is that we welcome the draft of the bill and urge its passage, subject to the matters that we have raised in our written submission, which I will go to.

We make the point in opening that effective antidiscrimination legislation and having a regime that is effective is crucial to social inclusion and full participation in public life by members of the Australian community. We also note that there is an important relationship between the antidiscrimination regime and employment, in particular to facilitate full labour market participation and diversity of employment outcomes. We also believe that improved social inclusion and labour force participation benefits our society and economy more broadly. Australia, in our view, does not have the luxury of not ensuring that we get the fullest possible labour market participation for all members of our community, and we believe there is a productivity benefit from ensuring, via an appropriate federal regime, that the full range of the Australian community is able to participate fully in paid employment.

We also note that the need for reform of antidiscrimination legislation in the legal framework is made clear by the statistics, including one we note in particular: ABS data released on 16 November last year indicated that around 20 per cent of pregnant women still reported discrimination in the context of employment, indicating that there is an ongoing task for the legal regime to perform. It is clear, in our view, that there needs to be improved efficacy in relation to the law in this area if we are going to turn around statistics of that nature.

We would note three positives in particular in relation to the bill. The first is that we support the introduction of a shared burden of proof. We note that that is broadly consistent with the approach of other legislation that deals with workplace discrimination, such as the Fair Work Act; although this draft does not go as far as the Fair Work Act in respect of the general protections in reversing the onus of proof, but it is an improvement. Secondly, we support the no cost jurisdiction, which, again, in an employment relations context, is consistent with the approach that workplace relations law more generally takes, where people have the opportunity to agitate their rights without facing the deadening fear of meeting the costs of their employer. Thirdly, we support the simplified definition of discrimination.

However, we do believe that there are some improvements required to the bill. These are set out in our submission, but I will touch on four of them. Firstly, we say that there has been a missed opportunity to reform the overall antidiscrimination legal framework, in particular to provide positive obligations on duty holders to promote equality, as well as the capacity for someone, such as the Human Rights Commissioner or other representative organisations, to bring representative claims in cases of systemic discrimination. We note that, while discrimination is experienced generally as an individual function, it is often systemic in its incidence. We think having a way whereby matters can be dealt with on a systematic basis is important. We would have hoped that there would have been improved advocacy in support and representation for complainants made as provision of the bill and we are disappointed that there has not been, and we would also support increases in the level of punitive damages to deal with the worst instances of abuse.

Secondly, in respect of protected attributes, we note in particular that the notion of family and carers' responsibility should be captured by the bill. The bill as drafted only deals with the term 'family responsibilities'. We strongly urge that be changed to 'family and caring responsibilities' to make it consistent with the Workplace Gender Equality Act and, indeed, the language that is used elsewhere in the Fair Work Act. We think that is an important point for consistency of federal law. We are also disappointed in clause 43 of the bill, which is the carve out for domestic workers. This will be an emerging issue for Australia if you think about the context of projects like the NDIS, which will see people with vouchers employing people in their own homes, and the emerging issue of home-based aged care. This will be a growing portion of our workforce and I think we will, in the end, regret not taking the opportunity to include appropriate protections for what will be a growing part of the Australian workforce.

Thirdly, in respect of exemptions, exceptions and defences, we do not support the limitation of the reasonable adjustments provision only applying to disability discrimination and we seek that that be made more broad. In respect of the exemption around inherent requirements of the job we are concerned that, as drafted, that is too wide and will provide too great an ability for employers to simply say matters are an inherent requirement of the job. We take the committee to some examples of that in our written submission. Coupled with that is the new justifiable conduct exemption in section 23. While we support it in principle we note that, in context of the other matters, having a general defence potentially diminishes—we say inappropriately—individuals' anti-discrimination protection; so those matters really, Senators, are a combination of the fact that, if you have a watering down of the obligation to make reasonable adjustments, you have an extension of the inherent requirements defence and you have a new general defence. Our concern is that the cumulative effect of that is to remove people's rights and we make some suggestions about how that might be remedied.

Finally, we note that in relation to the proposed code of compliance, in our view the role, scope of application and enforcement of the code is unclear and we have a concern that if the provisions of the code do not actually provide enforceable rights for employees, its utility and efficacy is really questionable. We set out in our submission why we think that needs some addition. Given the time, Senator, I will leave it there.

CHAIR: Senator Furner, I will go to you for questions.

Senator FURNER: Mr Lyons, can you explain to the committee the average or the contemporary leave entitlements associated with domestic violence leave, please?

Mr Lyons : I might defer to my colleague on that question, Senator.

Ms Tkalcevic : It is regulated, by and large, by agreements in the workplace and they vary from being able to use your existing paid leave entitlements through to additional entitlements; in one instance, a workplace has unlimited paid leave for domestic violence purposes. So it varies considerably, and the ACTU's view is that people experiencing domestic violence should also have been covered as having a protected attribute under the exception.

Mr Lyons : It is fair to say, Senator, the incidence of the explicit right to take leave for domestic violence related incidents is not common and, more generally, people have to access other forms of leave.

Senator FURNER: Is there any evidence for, or examples of, where your affiliates have associated and identified examples of discrimination as a result of taking that form of leave at all? Have you got any feedback on that?

Ms Tkalcevic : Yes, it exists. The key is that the push to achieve the leave entitlements is fairly recent; it has been mostly over the last year and I think it is at the point now where it is almost a million workers who are now able to access some form of leave for domestic violence. But the provisions require someone to actually identify themselves as experiencing or having experienced domestic violence which leaves them vulnerable to discrimination. So I think that the key here is that, if you are going to extend the application of domestic violence leave to employees, then you have also got to offer some protection if you are going to require, as I think is quite reasonable, some sort of evidence or acknowledgement from the employee to someone in the organisation that they are going through this.

Senator FURNER: Lastly, you advocate a change to punitive damages in the proposed bill. What are you proposing in that area?

Ms Tkalcevic : In our original submission to the Sex Discrimination Act review, way back in 2008, we advocated that, for example, regimes such as the consumer and competition legislation and many other forms of legislation have punitive damages as a preventative mechanism, and the antidiscrimination legislation, particularly in Australia as compared to, for example, the US, has very little preventative mechanism, because the damages are quite low.

Senator HUMPHRIES: I want to ask you about the comments you made in the submission about the deletion of the reference to formal equality in favour of achieving substantive equality. Can you explain what you mean by that and give me an example of what you think would be achieved by deleting the reference to formal equality?

Ms Tkalcevic : The difference, as I understand it, is that formal equality revolves around the concept of treating like with like, and substantive equality acknowledges that not everyone is like and that sometimes, in order to treat someone equally, they need to be treated differently. This is particularly critical given that there is no positive obligation on duty holders in this draft legislation that obliges them to eliminate discrimination and promote substantive equality.

Senator HUMPHRIES: Isn't that a good thing, though? Should it really be the objective of discrimination legislation to engineer, in effect, discrimination to achieve outcomes of equality in terms of the position that people find themselves in? If a person is discriminated against in employment because of their sexuality or their age or whatever, that is a kind of discrimination you should eliminate. But, if a person has a different outcome in their income level or their status in employment because they work harder or they are better at their job or more intelligent or whatever, surely that is not an outcome that ought to be affected or influenced by discrimination legislation? And isn't that what you are arguing for?

Ms Tkalcevic : No.

Senator HUMPHRIES: Give me an example of the kind of substantive equality which should be promoted at the exclusion of formal equality.

Ms Tkalcevic : In the instance where someone has a physical disability which precludes them from being able to do something in a certain way but they can do it in a slightly different way, perhaps with minimal adjustment to the workplace, substantive equality means actually doing it that way so that that person can achieve the same outcome. So it is just acknowledging that the two people may have a slightly different way of getting there. In the example of someone who has family responsibilities, holding meetings after work hours would not be achieving substantive equality, because one of those people cannot come after work, so it would just mean making an effort to hold the meetings at a time when everyone can make it.

Mr Lyons : Perhaps a good example would be that, if an adjustment is made to the way a job is performed to enable a person with a disability to perform that job, that is a way of ensuring substantive equality, but it would involve the employer treating two people who are doing nominally the same job marginally differently. I think that is the kind of example that we would go to.

Senator HUMPHRIES: I can see what you are getting at, but what role does that kind of adjustment have in discrimination legislation, where we are attempting to eliminate treatment which is unfair?

Are you suggesting that some obligation should be placed on employers, for example, to achieve substantive equality by virtue of these sorts of provisions, and, if so, how does that work? To what extent can an employer be penalised if they decline to pursue substantive equality among their employees?

Ms Tkalcevic : Our point is that, as a general principle, to treat people equally when they are not coming from equal positions is discriminatory in many instances. For example, making a promotion contingent on being able to work certain hours when you know that that is not going to be possible for one person, if it is not genuinely required for the job, is discriminatory.

Senator HUMPHRIES: That would be an example of indirect discrimination, though, wouldn't it?

Ms Tkalcevic : That is right, but, because we now have the simplified one definition, that definition of indirect discrimination does not exist anymore. We now just have one definition of discrimination, so the ACTU's submission is that this concept of making reasonable adjustments where it is appropriate, or at least having that obligation built into the definition, picks up what used to be in the 'indirect discrimination' definition, which is that there is a component in the definition of discrimination that would require at least looking at whether an employer has made an effort to make reasonable adjustments or whether the discrimination is—

Senator HUMPHRIES: Isn't it very hard for legislation to require an employer to look at something without having an obligation to actually perform it, to actually achieve that objective? I will come back to the point. How would you change the legislation to require an employer, in this case—or anybody else, for that matter—to achieve substantial equality as opposed to provide formal equality in opportunities and so forth in their workplace?

Ms Tkalcevic : If the object of the act is to achieve substantive equality, that sets the context from which discrimination is looked at, so we are suggesting that that is one way. The other way is that—if you look at particularly proposed sections 23 and 24, which are the exceptions—built into the exceptions should be some concept of making reasonable adjustments. So, yes, there is an exception if it is an inherent requirement of the job, but an employer must demonstrate that they have at least considered whether that job could have been done in a different way or whether the inherent requirements are in fact genuinely inherent requirements and whether reasonable adjustments could have got around that.

We are saying that for proposed sections 23(6) and 24(4) at the moment the obligation to make reasonable adjustments is limited to disability. We are saying that it should be extended to all attributes, in the context that if reasonable adjustments cannot be made or they are not appropriate then the exception stands and it is a genuine requirement of the job. However, if, for example—and we use this case study in our submission—a pregnant woman is told that it is an inherent requirement of the job to stand on her feet for 12 hours a day, even though she works at the checkout counter and it would be eminently easy to just put a high stool there, it would not get up.

There have to be some boundaries around what you say is an inherent requirement of the job. We have so many examples of this being abused. It is just a guise for genuine discrimination against someone who is a mature-aged worker—having to perform squat tests when there is actually no requirement that they squat or bend over or do various physical things on their job. There have to be some kinds of boundaries where you can say, 'Is this genuinely an inherent requirement, and is there a small and appropriate reasonable adjustment that could have been made to make this not a genuine requirement?'

Mr Lyons : It is about how the—

Senator BRANDIS: The examples you instance are perfectly commonplace examples of what would be called indirect discrimination.

Ms Tkalcevic : Yes.

Senator BRANDIS: So isn't that a problem with the bill—to remove indirect discrimination?

Ms Tkalcevic : It was a concern of many of the expert discrimination groups that if you remove indirect discrimination you remove that context, and that is what we are gravely concerned about. We agree with the idea of simplifying the definition, because it was quite confusing for the parties: indirect or direct? For employers and employees it was confusing. But what we have lost here is the context that the indirect discrimination picked up, which is that treating like with like is not always fair. Treating a pregnant woman the same as someone who is not pregnant and not being able to establish that that is a genuine requirement of the job is indirect discrimination, but it is not picked up in the drafting of this legislation.

Mr Lyons : Which is why our suggestion about the amendment to the objects and proposed sections 23 and 24, just going back to Senator Humphries's question, was trying to ensure that the total matters of context are taken into account when these matters are judged.

CHAIR: I am going to take the liberty as chair of asking the next question here, because I want to ask about domestic and family violence. We know that in the discussion paper there was a suggestion that discrimination against victims of family violence, particularly in the workplace, should be considered in this draft legislation, and it is not. Does the ACTU have a view about the inclusion of it?

Mr Lyons : We support it being included as a protected attribute and said so in the submission.

CHAIR: Would you be able to furnish some examples for us and take that on notice to support us if we were inclined to recommend that in our draft report?

Mr Lyons : I am happy to take that on notice and come back to you, including that we might amplify the answer to Senator Furner's question, which went to the incidence of the availability of that leave, as well. We will do that.

CHAIR: Can I just get you to clarify. You talked about the definition of family responsibilities. You are talking about family and carers?

Mr Lyons : Family and carers, which would provide consistency with the language that is used in the Fair Work Act and other pieces of Commonwealth legislation.

CHAIR: Thanks for that.

Senator WRIGHT: I will just quickly follow up that issue. That is what I was going to take up. Why do you think that the current protection on the basis of family responsibilities is not sufficient to extend by association, for instance, to carer or caring responsibilities? I think you say in your submission that it should be explicitly stated to be included. Also, why is it an important thing to have those sorts of carer responsibilities protected in all areas of public life, which is what you are putting in your submission?

Mr Lyons : Having been through this on a couple of other occasions where different pieces of Commonwealth legislation use marginally different terms, I suppose the base answer is that people tend to interpret it as meaning that the parliament intended to do something different. So there is a base reason here, which is that it is much easier for everybody involved in ensuring the implementation of the act and compliance with the act if people do not use different terms if they do not mean different things. The concepts around family and carers responsibility, the language we propose, are developing a much more settled meaning, I think, in the context of workplace relations law more generally, so that is why we propose that that be included. The bill as drafted appears to have some narrowing effect of what would otherwise apply under the Fair Work Act, and that would in our view not be appropriate, for the reasons we advance in the submission.

Senator WRIGHT: I understand that, but why is it important then, in your view, explicitly to make sure that carer responsibilities are included? Indeed, you suggest that it should be expanded beyond work related areas to all areas of public life. Just briefly, why?

Ms Tkalcevic : I think the concept of 'carer' is broader than 'family', and the laws Tim mentioned are moving away from narrow definitions of family, particularly with a view to, for example, Indigenous kinship relationships and the trend towards acknowledging that a variety of relationships exist that go beyond our traditional concept and traditional definitions of immediate family, so it is a progressive and more inclusive terminology. There was a second part to your question?

Senator WRIGHT: Really, in a sense, I am asking you: what is the public good? Why are you advocating that someone should be protected from discrimination on the basis of carer responsibilities?

Mr Lyons : The public good is the one that I opened with, I think. There is a public good associated with ensuring that people are able to fully participate in public life, including employment, and not be excluded from it on the basis of their caring responsibilities. Given the matters that my colleague has raised and matters associated with the demographic bump that Australia is going into, there will be a greater and greater call for people to be engaged in caring responsibilities, and it is going to be increasingly inappropriate on a public policy basis to say that it is okay to exclude people on the basis of their caring responsibilities—and we all take a broad definition of that in this law, as we would advocate in relation to other equivalent legislation.

Senator PRATT: I want to ask about the standing to represent complainants. Noting that I think most people who are members of unions would be somewhat surprised to find that unions are unable to represent them in such circumstances, I was interested in the significance of that problem.

Ms Tkalcevic : Obviously we oppose that particular drafting of the clause. It is disappointing—particularly with respect to the no-cost jurisdiction, it is important to all complainants whether they are unions or not to have access to affordable representation, particularly if they may not be able to claim costs back. We advocate very strongly that representative organisations, such as union—

Senator PRATT: What are the consequences of the situation as drafted?

Mr Lyons : It is likely to be that people will not be able to enforce their rights because they will have to reply on other representation. This has occurred to me personally in a couple of other contexts. It is very difficult to explain to a union member who goes to their union with a matter arising in the context of employment that for some technical reason associated with legislation the union is not technically able to represent them. It is a very difficult thing to explain to the individual punter.

Senator PRATT: Particularly when the union would otherwise be prepared to do so.

Ms Tkalcevic : That is right.

Mr Lyons : Indeed. I think the practical effect of the provision as drafted will be that people will not be able to enforce their rights.

CHAIR: Thank you both for your submission and your time. If you could follow up with some of those issues and provide the information back to the committee, that would be most helpful.

Mr Lyons : We will. I thank the committee for your time.