Discrimination Law and the Industrial Relations Agenda
Speech by Susan Halliday, Sex Discrimination Commissioner to the Australian Mines and Minerals Association National Conference, Hobart, 26 March 1999
Model anti-discrimination clauses in awards and agreements. Are they worth the paper they are written on?
Over recent years it is fair to say that Australian industrial law has increasingly incorporated anti-discrimination provisions.
This trend has emerged as labour market disadvantage, for particular groups has been acknowledged as a legitimate social concern.
The Workplace Relations Act is an example of industrial legislation that has had anti-discrimination concepts built into it.
I am going to take the opportunity today to explore with you, how the federal industrial relations system is coping with issues of discrimination.
Ultimately, the point I would like to leave you with, is that it is possible for issues of discrimination to be addressed effectively in workplaces, and within the scope of current industrial relations and employment law.
I would like to draw your attention to a recent landmark ruling that points to the fact that the Australian Industrial Relations Commission (AIRC) is both willing, and able, to deal with issues that relate to discrimination.
In December last year, Commissioner Di Foggo found that the decision of an employer to dismiss a woman for taking time off to care for her seriously ill child was harsh, unjust and unreasonable.
The Commission found that the employee's failure to attend work on two occasions because she had to care for her daughter was "legitimate and unavoidable".1
The Commission ordered the employer Kew Aged Care Pty Ltd to pay employee Dianne Johnston, four months wages as compensation for unfair dismissal.
The Workplace Relations Act prohibits employers from dismissing employees on the basis of family responsibilities. This decision has confirmed that only where the absence is intrusive and long, resulting in the employee being unable to perform the inherent requirements of the job, would there be a prospect of the employer successfully defending the dismissal action.
This case is also of interest in that it is a case where federal industrial legislation has dealt with similar issues to those covered by the federal Sex Discrimination Act in relation to employees with family responsibilities.
As I am sure many of you are aware the Sex Discrimination Act makes it unlawful to discriminate on the grounds of sex, marital status, pregnancy and presumed pregnancy. It also prohibits sexual harassment, dismissal on the basis of family responsibilities and victimisation.
This case brought before Commissioner Foggo produced a result that is consistent with the outcomes of similar cases lodged under the Sex Discrimination Act.
Apart from unfair dismissal provisions, the federal Workplace Relations Act provides a number of other avenues in which issues of discrimination can be considered.
First, the principal object of the Workplace Relations Act is "to provide a framework for co-operative workplace relations which promotes the economic prosperity and welfare of the people of Australia" including by "respecting and valuing diversity of the work force by helping to prevent and eliminate discrimination" on the basis of sex, amongst other things.2
Providing assistance with respect to giving effect to Australia's international obligations in relation to labour standards is another element evidenced within the Workplace Relations Act.3
Second, under the Workplace Relations Act, it is clear that the AIRC must take account of the principles embodied in the Sex Discrimination Act in performing its functions.4
The third connection I would like to highlight is perhaps the most direct connection between anti-discrimination and industrial relations systems.
These are the provisions that formally require me in my role as federal Sex Discrimination Commissioner to refer to the AIRC any act done under an award or agreement, if I consider the act is a discriminatory act and is not frivolous, vexatious, misconceived or lacking in substance.5
Under the Workplace Relations Act, the AIRC must then review the referred award or agreement, and in turn I then become a party to the review. If the AIRC considers the award or agreement is discriminatory, the AIRC must take steps to remove the discrimination, for example by setting aside or varying the terms of the agreement or award.6
Before the AIRC takes any such action in relation to a certified agreement, however, the AIRC must give "the persons bound by the agreement and the employees whose employment is subject to the agreement" an opportunity to remove the discrimination.7
Both the Workplace Relations Act and the Sex Discrimination Act define a "discriminatory act under an award or agreement" to be an act that would be unlawful under the Sex Discrimination Act except for the fact that it was done in direct compliance with an award or certified agreement.8 Both Acts state that the fact that an act is done in direct compliance with an award or agreement does not in itself mean that the act is reasonable.
Discrimination may be either direct or indirect.
Direct discrimination is defined to occur when "the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex".9
Indirect discrimination is defined to occur when the discriminator "imposes, or proposes to impose, a condition, requirement or practice that has or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person",10 and the condition, requirement or practice is not reasonable.
Similar provisions apply in relation to marital status, pregnancy, potential pregnancy and dismissal on the ground of family responsibilities.
"A discriminatory act under an award or agreement" means more than that the language is discriminatory - that it includes direct sex specific provisions or gender exclusive language. However, there is a difficulty in identifying all forms of discrimination in awards and agreements, particularly indirect discrimination.Indirect discrimination may not be identified from simply reviewing the award or agreement. It may be that a provision in an award or agreement is likely to have a discriminatory effect although it is not defined as applying to one sex or the other. For example, provisions for differential treatment of casuals and part time workers are likely to have a greater effect on women than on men because women make up a greater proportion of the part time and casual workforce.11
Similarly, seniority provisions, some shiftwork or spread of hours requirements and some performance pay criteria could constitute indirect discrimination on the basis of sex.
These are powerful provisions. However, there have been no referrals to the AIRC to date. The provisions have never been used.
Why not?
Certainly of the few complaints received alleging discriminatory provisions in awards or agreements, neither I nor my predecessors have yet been satisfied that the discrimination was made out or that any discrimination could be attributed to a provision of an award or agreement.
A great deal of the discrimination relates not so much to discrimination that flows from the provisions of awards and agreements. It more often arises from individual discriminatory acts, or from systemic and institutional discrimination. A great deal of discrimination occurs because awards are silent on issues of importance, not because they offend in their terms.
There are those who argue that awards and agreements fail to provide appropriate protection against systemic and institutional discrimination, and there are those who argue that the provision of such protection is not the role of the award or agreement.
Despite this, I am prepared to say that much discrimination has been removed from awards following the 1995 Review of Awards under section 150A of the then Industrial Relations Act.
Part of the objective of the Review was to remove discriminatory provisions from awards.
The Human Rights and Equal Opportunity Commission participated in that Review and was a member of the tripartite working group that considered discrimination.
The Model Anti-discrimination Clause was developed as a result of the Review. The Workplace Relations Act12 states that the Model Anti-discrimination Clause may be inserted into awards and agreements.13
This Clause represents the fourth connection between the industrial relations system and discrimination issues.
These provisions all recognise that certain groups, because of some shared characteristic (such as sex or racial background) may suffer disadvantage in society, including in employment. They are an attempt to alleviate the disadvantage caused by this discrimination and a means of providing redress.
The question posed today is whether or not these provisions are worth the paper they're written on? How well do these connections between the industrial relations system and discrimination issues protect vulnerable and disadvantaged workers?
To start, I would like to note that these provisions operate in a system that is increasingly deregulated, where responsibility for determining the conditions of employment is increasingly being handed to the parties to the employment relationship. Parties are restricted in the number of matters that can be included in awards, and the uptake of enterprise-level or individual agreements has gained momentum.
In principle I do not oppose deregulation, nor am I opposed to award simplification. However there are two issues to consider
- not everything
can be black and white
- the successful operation of the deregulated industrial system is premised on employers doing the right thing; and the fact is that, while many do, there are a significant number of employers who fail to act fairly towards their employees. Such activity not only mocks industrial reform, it has also resulted in the employer organisations quietly rethinking the emphasis placed on stating that employers had over recent years earned the right to manage their workers without interference from a third party.
In my position, it may not surprise you that I hear a great many anecdotes. I am hearing, for example, that not all employers understand the literal meaning of the word "agreement". It appears that unfortunately some are ignorant of the word "coercion" and the provisions of Division 9 of Part VIB of the W R Act.14
I am only too aware that there are a couple of States now known as "the lands of the unregistered agreements". Discriminatory provisions in unregistered agreements have little chance of being challenged by the ARIC or the Employee Advocate. Often emerging from small business these documents in my experience are usually presented to non-unionised workers. People actually sign and abide by the discriminatory requirements, assuming all is proper, or believing that if they don't they will face unemployment.
I have recently heard of one unregistered agreement that reads in part:
"It is recognised that an employee returning from parental leave may not be assigned to the same store they were working in prior to commencement of leave"
This despite the Workplace Relations Act clearly including in minimum employment entitlements a provision that parents may take parental leave "without relinquishing employment, and with rights resulting from employment being safeguarded".15 I consider this agreement clearly raises issues of discrimination.
Another unregistered agreement I am aware of required employees to give twelve months notice prior to taking maternity leave......An interesting concept really!!
Most people would see this to be a problematic issue, remembering the definition of indirect discrimination discussed earlier, and of course there is the issue of potential pregnancy discrimination.
But what of agreements that make it to the AIRC for registration? The AIRC must refuse to certify an agreement if it thinks that a provision of the agreement discriminates against an employee, whose employment will be subject to the agreement, because of, or for reasons including, sex, amongst other things.16 As I have discussed these definitions of discrimination are drawn from Australia's international obligations and the federal anti-discrimination legislation including the Sex Discrimination Act.17
However, discrimination issues have not always been recognised by industrial tribunals, including the AIRC, as matters with which they should concern themselves. Discrimination issues have been viewed as separate from the issues of the industrial arena by tribunals, employers and unionists alike.
I am aware of industrial tribunals that have, on occasion, dismissed matters involving sexual harassment as matters not of industrial concern, And its fair to say that some unions have been very slow to increase their awareness of issues of discrimination, and in turn of little assistance to their members.
While I consider that these issues are increasingly being dealt with in a more sophisticated and appropriate fashion by the AIRC and industrial parties, I believe we have a significant way to go before disadvantaged workers are properly protected.
The reality is that the circumstances in which many women find themselves mean that they are desperate to get work, and are clearly grateful for any offer that will place food on the table. The woman worker I am describing is most unlikely to question authority or for that matter any male (often the result of cultural conditioning women who have been taught, or required to be subservient, don't automatically become assertive and equal to men because they get a job or because we deregulate the industrial system).
With increasing numbers of woman entering the workforce and greater numbers of woman than men looking for work, I am of the view that we have to recognise that not all is black and white and when dealing with some woman we will encounter those who through no fault of their own have been socialised differently, often sheltered, at times less educated and far less likely to be assertive.
My work results in contact with many different women - trust me their world is very different from ours. I recently met a woman who refused a promotion at the supermarket where she was employed (despite the fact that the family needed the extra money) because it would mean that she would earn more than her husband. Unable to make eye contact with me she said it "wasn't right" and that her husband "wouldn't like it" and finally she noted it wasn't "worth the risk"!
Embarrassed, she wanted to honestly admit to me why she refused the promotion, to explain that it wasn't that she wasn't grateful for the opportunity. The mere fact that she was demonstrating being grateful is an issue - after all she was offered the job on merit.
I see many woman who I'd classify as vulnerable in the workforce, and they are vulnerable for a variety of reasons. It is important to ensure the protection of women who have been denied, for whatever reason, the opportunity to operate effectively in a deregulated system.
It is inappropriate to presume that all women have the skills necessary to operate industrially in the same manner, and with the same level of confidence, that their male colleagues currently do, as many woman have been, and are still often, denied access to these skills - whether it be due to social pressure, cultural differences or their conservative education. The presumption that they are on a level playing field and should be treated the same as everyone else only helps to create a group of victims, or less privileged persons, many of whom will be reluctant/fearful when it comes to exercising their industrial rights.
We need to work to educate all women about how to be industrial players, it is in everyone's interests in our deregulated system.
Women who are well educated and aware of their rights are able to benefit from a deregulated system. For example, over 5% of women have now secured paid maternity leave - a provision in excess of the minimum legislated requirements. This shows that, as Minister Reith has suggested, the system can produce "more innovative workstyles and working patterns that balance work and family responsibilities more effectively".18
It is my contention that a motivated and happy workforce produces benefits for employers. Recent research from the UK indicates that enlightened human resources policies can produce productivity benefits that outstrip any improvements flowing from better strategic planning or technological innovations.
I am making these comments not from the perspective of an ivory tower whose occupants lack an understanding of the priorities and constraints with which business operates. I have a strong business background. I have worked across the mining, transport, manufacturing and petroleum sectors and have consulted to and lobbied on behalf of a wide variety of organisations of various sizes.
In my year as Sex Discrimination Commissioner, I have been overwhelmed by the support I have received from industry. This is important when you consider that 80% of complaints under the Sex Discrimination Act come from the area of employment. Many of the remainder relate to the provision of goods and services, which is obviously linked to employment.
I understand how difficult, time consuming, frustrating and complex industrial relations issues can be to manage, in the real world - this is not an excuse however, for not managing them.
An illustration of the difficulties of managing these issues in an industrial context is provided by the following, fairly topical, example relating to the lead industry.
In 1984, with the introduction of the Sex Discrimination Act, discrimination on the basis of pregnancy became unlawful at a federal level. At the time it was common practice in the Australian lead industry to refuse to employ women due to the potential harm certain levels of lead in the blood of pregnant or potentially pregnant women could have on the foetus or breastfed child.
This meant that, as of 1984, organisations in the lead industry were prima facie in breach of the Sex Discrimination Act.19 However at that stage, discrimination on that basis was unlawful only if it was not reasonable in the circumstances20 and it was possible to argue in some circumstances that refusing to employ women on the basis of pregnancy was reasonable in the circumstances and therefore not a breach of the legislation.
Worksafe developed a draft National Standard and Code released in February 1990.21 Worksafe's position was that occupational health and safety standards could not be reconciled with equal employment opportunity principles. We argued that all workers - men and women - had a right to a safe working environment and all have a right to equal employment opportunity. There is evidence that exposure to lead can be dangerous to the reproductive systems of both men and women.
In 1992, Mt Isa Mines sought a review of Worksafe's draft Standard before the Federal Court.23 The case arose because, although our approach had not been fully incorporated in the draft Standard and Code in that women were still excluded from the industry, in the opinion of MIM the draft Standard and Code nonetheless paid too much attention to equal employment opportunity principles.
Justice Davies found in favour of MIM, saying that
- Worksafe had abrogated
part of its function to HREOC by accepting that HREOC should issue exemptions,
thereby establishing safety precautions for the lead industry; and
- that Worksafe appeared to be overborne with issues of sex discrimination.
However, the Court found that Worksafe's legislation and the Sex Discrimination Act interact to the extent that Worksafe may declare Standards and Codes that recognise the impact of the Sex Discrimination Act insofar as it prohibits discrimination in employment and provides for exemptions.
The Court stated that Worksafe "must not contravene the Sex Discrimination Act but it must recognise its presence and alert relevant persons, particularly employers to it and its pitfalls ....[and] cannot aid and abet or procure or induce a breach of the law ...".25
Worksafe's Standard and Code were published in October 1994.26 The Standard provides that women who are pregnant or breastfeeding are to be excluded from working in lead risk jobs (Clause 14(1)) and that the lead levels of females who are of reproductive capacity, pregnant or breast feeding, should be more regularly monitored than their male counterparts (Clause 18).
The Preface of the Standard advises of the existence of federal, state and territory anti-discrimination legislation and that any employers wishing to discriminate on the basis of sex must seek an exemption under the relevant legislation.
If no exemption in relation to the discriminatory treatment exists, then the employer undertaking the above action will be prima facie in breach of the Sex Discrimination Act. This means that if employers are complying with the Standard and Code by removing women who are considered to be at risk and this disadvantages the women, then those employers are prima facie in breach of the Sex Discrimination Act.
The 1994 National Standard and Code provide for review of their provisions every four years. This means that the Standard and Code should have been reviewed in 1998. But guess what.....
It is also relevant that in 1995, the Sex Discrimination Act was amended so that direct discrimination on the grounds of pregnancy is unlawful whether or not it is reasonable in the circumstances.
I'd suggest that this result is not particularly satisfactory for employers with lead exposure. There is no straightforward procedure for employers to follow. Employers complying with OH&S principles may well find themselves in breach of the Sex Discrimination Act.
Somewhat concerned about this issue, which seems to have been overlooked / neglected by employers for whom there appear to be no current exemptions - I took the opportunity to mention the issue to a few parties who should be interested in my recent discovery, as part of the discussions around submissions to the national Pregnancy and Work inquiry I am currently conducting at the request of the federal government.
I'm pleased that the Aust. Mines and Minerals Assoc. has addressed the issue as part of a submission to the pregnancy inquiry.
Thus far there are clear indications that many employers in this industry are not aware of the complexity of the issues and often adopt an ad hoc approach. Many appear to have decided not to worry about the issue until circumstances, perhaps in the form of a discrimination complaint, require them to.
Perhaps a more workable solution is to make sure you are aware of the law and your options. Your options basically are as follows.
- Organise work
practices so that no employees are exposed to the minimum harmful blood
lead levels. With advances in technology, this should become more and
more a reasonable prospect.
- If it remains
necessary to transfer women because they are pregnant or breastfeeding,
this should be done in a non-discriminatory way. Even if women are not
able to continue working in positions that involve harmful lead exposure,
this does not mean that they should suffer disadvantage. In many cases
there will be positions available to those women that do not involve
a sacrifice in remuneration, benefits, or training or promotional opportunities.
- As a last resort, employers can approach me and/or the relevant State agency for a temporary exemption. I note again that at present there are no exemptions in force.
Some employers have adopted one or the other of the first two solutions. I recognise that these solutions involve taking the time to understand the law, attention to work practices, appropriate human resource management, perhaps commitment of capital to improved technology or maybe administrative time and expense. But there are clear benefits - and it is the law.
The lead example provides a good case study of how anti-discrimination principles and employment systems should be able to work together and how it sometimes takes a change in perspective to see how it can be done. It also indicates that there continue to be failures in dealing appropriately with the issues, however, I would like to take this opportunity to congratulate those who have demonstrated leadership in the lead industry and indeed the Occupational Health and Safety arena when it comes to the management of lead issues, including Australian Mines and Metals Association.
Trials at the Top, a study of Australian executive culture by Amanda Sinclair of the Melbourne Business School identified some of the reasons for the continuing exclusion of women from the executive management positions and the scope and forces for change.
Sinclair found that deeply embedded cultural practices, conceptions of masculinity and femininity are played out in executive contexts, predetermining managerial processes of selection, inclusion and reward.
Australian executive culture is in transition with respect to how women are regarded and treated. Sinclair identifies four phases of evolution in executive culture. In closing, I would like to refer to these - they are instructive for understanding and dealing with issues of discrimination in general.
- The first stage
is denial. The belief that the lack of women is not a business
issue. There may be an aversion to even discuss women with the justification
that business is about 'merit' and that it is 'sexist' to admit gender.
Employers may claim, for example, that they always pick 'the best person
for the job' without recognising that who is best is an effective form
of 'homosocial reproduction'.
- The second stage
recognises the issue but casts as a problem with women - "the
trouble with women is". Prescribed remedies involve women 'learning
to adapt', for example only taking minimal time off for child-bearing
etc.
- Management
of the problem is the third stage. Organisations actively seek to manage
the problem of women's exclusion but most initiatives are women-focussed.
Companies may put in place new procedures and processes, but they tend
to be reactive and after the fact.
- Finally there are those who take a leadership role into a new culture. Commitment to change, recognition that this is driven from the top, but must also be marked by self examination. The problem is recast not as women but as the culture itself.27
Perhaps the challenges posed by discrimination issues in industrial legislation could usefully be seen in that light. I would like to suggest that the challenges that employers in the mines and minerals sector face leave them well placed to take those leadership roles.
Endnotes
1 D
Johnston v Kew Aged Care Pty Ltd 9 December 1998 1476/98 M Print Q9544.
2 s.3(j) WRA.
3 s.3(k) WRA.
4 s93 WRA.
5 s50A SDA.
6 s113(2A) WRA.
7 s113(2C) WRA.
8 s50A(9) SDA and s113(5) WRA.
9 s5(1) SDA.
10 s5(2) SDA.
11 The absence of provisions for part time work has been found
to be discriminatory in decisions in the United Kingdom eg Home Office
v Homes [1984] IRLR 299 EAT; Greater Glasgow Health Board v Carey
[1987] IRLR 484 EAT.
12 s89A WRA.
13 The substantive parts of the Clause are as follows.
1. It is the intention of the respondents to this award to achieve the
principal object in section 3(g) of the Industrial Relations Act 1988
by helping to prevent and eliminate discrimination on the basis of race,
colour, sex, sexual preference, age, physical or mental disability, marital
status, family responsibilities, pregnancy, religion, political opinion,
national extraction or social origin.
2. Accordingly, the respondents must make every endeavour to ensure that
neither the award provisions nor their operation are directly or indirectly
discriminatory in their effects: AIRC 2120/95 Print M5600, p14.
14 s170 NC(1) WRA: A person must not:
a. take or threaten to take any industrial action or other action; or
b. refrain or threaten to refrain from taking any action, with the intent
to coerce another person to agree, or not to agree, to making....an agreement.
15 s170KA(2) WRA.
16 s170LU(5) WRA.
17 See also s170LA WRA which requires the AIRC to perform its
functions in relation to certifying agreements in a way that furthers
to the objects of the WRA (including s3(j) and (k) which respectively
relate to discrimination and Australia's international obligations in
relation to labour standards).
18 WRA Second Reading Speech.
19 When the SDA was passed Western Australia, Tasmania, Queensland
and the Territories had no sex discrimination legislation at all. Therefore,
for the first time the lead industries in those states and territories
were prima facie in breach of anti-discrimination legislation by not employing
women.
20 ss7 and 7B.
21 See "Lead: A public discussion paper", Worksafe Australia,
Australian Government Publishing Service, Canberra, February 1990.
22 In 1980 WHO found that any level over 40g Pb/100ml is harmful
for men (and any blood/level over 50g Pb/100ml may have adverse effects
on sperm production) and any level over 30g Pb/100ml is harmful for women
(and may endanger a foetus). It is likely that the blood/level of workers
in the industry will be 40g Pb/1000ml and over. Therefore all workers
are currently at risk, and there is potential for adverse effects on sperm
production or harm to a foetus.
23 MIM v Lou Marks; Edward Emmett; Jennifer George; Clive
Brown; Jennifer Massie; David Nolan; Robert Hart; Kerry Klineberg; Barry
Nutter; Neil Bartholomaeus; Leslie Wright; Darcy McGaurr; John Thomson;
Sarah Butterworth; Barry Durham; John Woodrow; Brendan Priess; Margaret
Conley; National Occupational Health and Safety Commission and Human Rights
and Equal Opportunity Commission No. G743 of 1991 FED No. 109 Sex
Discrimination (1992) 106 ALR 702 (1992) 35 FCR 96 (1992) 26 ALD 411.
24 Human Rights and Equal Opportunity Commission v MIM;
Lou Marks; Edward Emmet, and Ors and National Occupational Health and
Safety Commission No. NG173 of 1992 FED No. 796 Discrimination Legislation
- Administrative Law at 7 of Black CJ's judgement; (1993) 118 ALR 80;
(1993) 46 FCR 301.
25 At 49.3.
26 National Standard for the Control of Inorganic Lead at
Work [NOHSC:1012 (1994)]; National Code of Practice for the Control
and Safe Use of Inorganic Lead at Work [NOHSC:2015 (1994)].
27 Sinclair, A. (1994) Trials at the Top: Chief Executives
talk about Men, Women and the Australian Executive Culture.
