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Fair Work Amendment (Prohibiting Discrimination Based On Location) Bill 2015

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2013-2014-2015

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

Fair Work Amendment (Prohibiting Discrimination Based On Location) Bill 2015

 

 

 

EXPLANATORY MEMORANDUM

and

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

 

 

 

 

 

 

Circulated by authority of

George Christensen MP



 

Fair Work Amendment (Prohibiting Discrimination Based On Location) Bill 2015

 

 

 

OUTLINE

 

The policy intent of this Bill is to ensure that employers cannot discriminate when choosing employees based upon their geographical location.  During times of high resource demand, a number of mines have recruited employees based upon their geographic proximity to airports.  As demand for mining employees has decreased, this requirement has continued, leading to a situation where locally based employers cannot apply for advertised jobs.  The effect of the Bill will ensure that Central Queenslanders, and indeed any Queenslander, will not be excluded from employment in their local area.

 

FINANCIAL IMPACT

 

The Bill will have no financial impact.

 

NOTES ON CLAUSES

 

Clause 1:  Short Title

 

Clause 1 provides for the Bill, once enacted, to be cited as the Fair Work Amendment (Prohibiting Discrimination Based On Location) Bill 2015.

 

Clause 2:  Commencement

 

Clause 2 provides for the Bill to commence on the day after the Act receives the Royal Assent.

 

Clause 3:  Schedules

 

Clause 3 provides that legislation specified in a Schedule is amended or repealed as set out in that Schedule.

 



 

Schedule 1 - Amendments

 

Summary

 

The objective of this Bill is to end the discriminatory employment practices currently implemented by regional mines that require employees to live within 100km of specified airports.  The result of this condition is that potential employees that live in the communities that surround these mines are prohibited from applying for these jobs.

 

Regional unemployment is a significant challenge confronting Australia.  Preventing regional employees from applying for regional jobs without a justifiable reason is a discriminatory practice. 

 

The existing provisions of the Fair Work Act 2009 currently make it unlawful for an employer to discriminate against an employee or potential employee on a number of grounds.  The proposed amendments will include geographic location as a condition that must not be discriminated against.

 

 

 

 

Explanation of the changes

 

Item 1 inserts a new section 351A into the Fair Work Act 2009 .  This new section is modelled on the existing section 351 of the Fair Work Act 2009 .  The new section makes it unlawful for an employer to take adverse action against an employee or potential employee based upon where they live. 

 

An exemption is allowed for particular positions that have a location requirement as an inherent part of that particular position.  This exemption provision is modelled upon the existing paragraph 351(2)(b).

 

Item 2 is a consequential amendment to allow the existing section 351 and the new section 351A to have distinctive headings.

 

Item 3 is an amendment to provide a civil penalty for contravening the proposed subsection 351A(1). The same rules about who can apply for a civil penalty, in which courts the application can be made, and the level of penalty (60 penalty units) will apply for the proposed new civil penalty provision as apply for the existing civil penalty provisions in Part 3-1 (General Protections).

 

 

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

FAIR WORK AMENDMENT (PROHIBITING DISCRIMINATION BASED ON LOCATION) BILL 2015

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

 

This Bill, the Fair Work Amendment (Prohibiting Discrimination Based on Location) Bill 2015, creates a new protection within the Fair Work Act 2009 from discrimination in employment, based upon an employee’s, or potential employee’s, residential location. 

 

The need for this Bill has arisen following the downturn in the resources sector, coupled with the ongoing advertisement of jobs with the requirement that an applicant must live within 100km of Brisbane or Cairns airport.  This has resulted in potential employees in regional locations being unable to apply for jobs within their local communities and the rise of 100% fly-in, fly-out (FIFO) workforces, at the expense of local jobs.

 

The ability to apply for and obtain a job should be based upon the candidate’s capacity to perform the role.  Preventing locals from applying for these jobs is a discriminatory practice.  The need to maintain a 100% FIFO workforce should only be allowed when local employees cannot be found to perform the role.

 

Human rights implications

 

Under Australian Law, it is unlawful to discriminate on the basis of age, disability race and sex.  In the area of employment, these rights have been further extended by the Fair Work Act 2009 .  Under that Act, an employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.  The extension under that Act is not absolute, with reasonable restrictions placed upon these protections.

 

The purpose of this Bill is to extend this protection from discrimination under employment law to include a geographical basis.  The consequence of allowing for 100% FIFO workforces has resulted in legitimate candidates being prevented from seeking gainful employment purely due to their residential location and not their suitability for the role.

 

 

Conclusion

 

Existing employment law establishes clear protections that prevent an employee from acting in a discriminatory way against an employee, or prospective employee.  This Bill enhances the right to work and freedoms from discrimination in the workplace by extending existing protections to a new form of employment discrimination that is affecting many Australian communities.

 

 

 

George Christensen MP