Mr John Carter,

Secretary
Senate Employment, Workplace Relations and Education Committee
Department of the Senate
Parliament House
Canberra ACT 2600

By email: eet.sen@aph.gov.au

21 November 2005

Dear Mr Carter,

Re: Inquiry into the Workplace Relations Amendment (WorkChoices) Bill 2005

I refer to the appearance on 17 November 2005 by Sex Discrimination Commissioner Pru Goward and HREOC staff before the Senate Employment, Workplace Relations and Education Legislation Commission’s Inquiry into the Workplace Relations Amendment (WorkChoices) Bill 2005.

HREOC provides the following material by way of response to questions on notice and clarification of its submissions.

1. Amendment to Written Submission

HROEC would like to make an amendment to its written submission to ensure clarity. In the second last paragraph on page 2 of the HREOC submission, the first sentence should be replaced with the following:

The potential exists for indirect discrimination to permeate the setting of minimum wages by reason of unstated bias about the value of certain skills or attributes.

2. Response to Question on Notice by Senator Murray

Senator Murray asked for HREOC’s views on a ‘two-tier’ system under which certain disadvantaged workers, including workers with a disability, may be given greater protection of working conditions than other workers (Hansard p 25). Senator Murray invited HREOC to refer to the evidence of the Australian Federation of Disability Organisations (AFDO) on 16 November 2005.   In an exchange with representatives of AFDO, Senator Murray outlined the proposal as follows (at p 38):

[T]he bill should be more expansive with respect to anyone who is disadvantaged – namely, that whilst you might have five minimum conditions for the general population, who are assumed to have every ability to interact with their employer, with respect to those who are disadvantaged… [t]here should be an expanded number of minimum conditions.

HREOC believes that this proposal would need to be considered at much greater length and in greater detail than is presently possible to enable an appropriate response to be provided. The   proposal raises a number of potentially complicated issues, including adequately defining the classes of people to whom it applies. For example, would anyone with a disability as defined by the Disability Discrimination Act 1992 (Cth) (a definition that includes a broad range of disabilities, many of which may not impact on a worker’s ability to ‘interact with their employer’) be afforded additional protections or only some?

Without expressing a concluded view, HREOC would suggest that a guarantee of adequate protection to all workers may be a more appropriate framework. This could be done by broadening the legislated Standard to include more employment conditions, or by better protecting all or some of the allowable award matters to ensure that they cannot be bargained away.

3. Response to Question on Notice by Senator Johnston

Senator Johnston made reference to p 2 of HREOC’s written submission which states:

HREOC notes that section 90ZR of the WorkChoices Bill provides for the principles embodied in anti-discrimination legislation to be taken into account by the AFPC. While HREOC supports this, it is concerned that:

  • anti-discrimination considerations are not included in the wage setting parameters; and
  • section 90ZR does not specify how the AFPC is to take these matters into consideration, raising the potential for complex issues such as indirect discrimination to go unaddressed.

Section 90ZR provides:

90ZR Anti-discrimination considerations

(1) Without limiting sections 90 and 90A, in exercising any of its powers under this Division, the AFPC is to:

(a) apply the principle that men and women should receive equal remuneration for work of equal value; and

(b) have regard to the need to provide pro-rata disability pay methods for employees with disabilities; and

(c) take account of the principles embodied in the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004 relating to discrimination in relation to employment; and

(d) take account of the principles embodied in the Family Responsibilities Convention, in particular those relating to:

(i) preventing discrimination against workers who have family responsibilities; or

(ii) helping workers to reconcile their employment and family responsibilities; and

(e) ensure that its decisions do not contain provisions that discriminate on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Senator Johnston asked if the concern raised by HREOC would be satisfied by the replacement of the words ‘is to’, with the word ‘shall’ in s 90ZR(1) (Hansard pp 26-7).

HREOC is of the view that the replacement of the words ‘is to’ with the word ‘shall’ would have no effect on the operation of the section (those expressions being of equivalent meaning and effect) and would not, in any event, address HREOC’s concern with this aspect of the WorkChoices Bill.

In HREOC’s view, the processes of the AFPC in making wage-setting decisions (as set out in proposed s 7K of the WorkChoices Bill) are inadequate to ensure that issues of pay equity and the potential for indirect discrimination are properly considered. Although the WorkChoices Bill may provide for certain matters to be considered by the AFPC, it does not provide for an appropriate mechanism for this to take place.

Pay equity is fundamental to the achievement of gender equality and therefore a central concern of HREOC in undertaking its functions under the Sex Discrimination Act 1984 (Cth). HREOC maintains that a robust process, mandated by legislation, that requires the AFPC to seek and publish input from bodies with expertise in matters of pay equity and indirect discrimination is essential.

Yours sincerely,

The Hon John Von Doussa QC

President

Human Rights and Equal Opportunity Commission Website: Legal Information Last updated 02 March 2006.