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H R Law Masterclass: Federal Anti-discrimination Law in an Employment Context: recent developments, likely future directions and the lessons from the past

Commission – General

H R Law Masterclass: Federal
Anti-discrimination Law in an Employment Context: recent developments,
likely future directions and the lessons from the past

Speech delivered by the Hon
John von Doussa QC, President, Human Rights and Equal Opportunity Commission,
Sydney 15 October 2003.


To some of you the role of The Human Rights and Equal
Opportunity Commission (HREOC) in the industrial relations scene in Australia
will be well known, others of you may be wondering why a representative
of a human rights body would be speaking on this occasion. I propose therefore
to briefly summarise HREOC's role in the administration of federal anti-discrimination
law, including its complaint handling function, and to give some recent
statistics.

Then I shall discuss two areas which HREOC considers
to be topical. The first concerns recent decisions that have upheld discrimination
complaints by women who have unsuccessfully sought to vary their work
times to cater for child care responsibilities. Then, as it is currently
the in thing to "sex up" a paper, I will consider potential
discrimination issues that can arise from manifestations of romantic activity
in the workplace, and the implications for an employer.

HREOC is a statutory body independent of government.
Whilst its main function is to promote an understanding and acceptance
of human rights in Australia, it is also charged with the responsibilities
of receiving, investigating, and attempting to conciliate complaints of
unlawful discrimination under the federal Racial Discrimination Act 1975
, the Sex Discrimination Act 1984 and of the Disability Discrimination
Act 1992. I shall assume that the scope of the conduct that these Acts
renders unlawful is generally known to you.

HREOC also has similar functions that are perhaps less
well understood arising under the provisions in Part II of her the Human
Rights an Equal Opportunity Act 1986 (the HREOC Act) which deal with equal
opportunity in employment. These provisions seek to implement in part
Australia’s obligations under the Discrimination (Employment and
Occupation) Convention 1958, which is a Schedule to the HREOC Act. Complaints
under these provisions are often referred to as ILO 111 complaints.

Under these provisions, HREOC can receive complaints
of discrimination in the workplace on the basis of race, colour, sex,
religion, political opinion, national extraction or social origin [1]
, and also on the basis age, medical record, criminal record, impairment,
marital status, mental, intellectual or psychiatric disability, nationality,
physical disability, sexual preference, or trade union activity. [2]

The pursuit of a remedy for alleged unlawful discrimination
under one of the federal Discrimination Acts, or for a contravention of
ILO 111 must start with a written complaint to HREOC. [3]
All complaints are initially investigated in the same way, and whenever
it appears appropriate an attempt to resolve the complaint by conciliation
is made.

However where conciliation is not appropriate, or where
it fails to achieve a settlement, different procedures are followed depending
on whether the complaint alleges unlawful discrimination under one of
the Discrimination Acts , or a contravention of the ILO 111 provisions.

In the former, the HREOC Act provides enforceable remedies
through the Federal Court or the Federal Magistrates Court , [4]
whereas under the ILO 111 provision, the only action possible is for the
President of HREOC to report in writing to the Attorney General that a
contravention of the provisions has occurred, and the report is tabled
in Parliament. The report can recommend the payment of compensation, but
the recommendation cannot be enforced if the respondent to the complaint
chooses not to pay. [5]

When the hearing function for unlawful discrimination
complaints was transferred from HREOC to the courts in April 2000 there
was a concern that the development of jurisprudence in the area would
be compromised by a more legalistic approach by the judiciary, and that
the capacity of the courts to make cost orders would result in applicants
being deterred from pursuing claims for unlawful discrimination.

This fear has not been borne out by experience. Comparative
data indicates that there has been no decrease in the number of complaints
brought under the federal Discrimination Acts. [6]

The HREOC website at www.humanrights.gov.au
has extensive information about the Commission’s role with complaints.
It contains guidance for both the employees who think that they have been
discriminated against, and for employers who are implementing or maintaining
systems to prevent complaints arising. The website is worthy of ongoing
attention.

National complaints
received over the reporting period

 
2001-02
2002-03
Racial
Discrimination Act
186
182
Sex Discrimination
Act
399
380
Disability
Discrimination Act
452
493
Human
Rights and Equal Opportunity Commission Act
234
181
Total
1271
1236

Employment related complaints received by area*

 
2001
-2002
2002-
2003
Racial
Discrimination Act
   
Employment
125
(35%) [7]
149
(42%)
Right
to join trade unions
-
-
Sex
Discrimination Act
Employment
597(85%)
568
(87%)
Superannuation,
insurance
1
-
Application
forms etc
-
4
Trade
unions, accrediting bodies
8
6
Disability
Discrimination Act
Employment
448
(52%)
480
(53%)
Superannuation,
insurance
15
17
Application
forms, requests for information
-
-
Trade
unions, registered organisations
-
-
Human
Rights and Equal Opportunity Commission Act (ILO 111)
Race (ILO
111)
-
-
Colour
(ILO 111)
-
-
Sex (ILO
111)
-
-
Religion
(ILO 111)
12
16
Political
opinion (ILO 111)
4
1
National
extraction (ILO 111)
-
-
Social
origin (ILO 111)
-
2
Age (ILO
111)
30
26
Medical
record (ILO 111)
-
-
Criminal
record (ILO 111)
37
30
Impairment
(including HIV/AIDS status) (ILO 111)
-
-
Marital
status (ILO 111)
-
-
Disability
(ILO 111)
-
-
Nationality
(ILO 111)
-
-
Sexual
preference (ILO 111)
18
20
Trade
union activity (ILO 111)
16
21

* An area is included for each ground of complaint,
so one complaint may have multiple and different areas.

Sex Discrimination Act - complaints
received by ground

Sex
Discrimination Act
2001
- 2002
2002
- 2003
Sex discrimination
237
184
Marital
status
25
25
Pregnancy
212
230
Sexual
harassment
195
172
Parental
status/ family responsibility
16
19
Victimisation
22
12
Total*
707
651

*One complaint may have multiple grounds

Before moving on to the two specific topics that I propose
to discuss I look forward in time for a moment. There is presently before
Parliament a Bill to enact age discrimination legislation. If the Bill
is passed it will operate in most areas of public life, not just in the
workplace. In the workplace, age discrimination is already covered under
ILO Convention 111, but the proposed Act will for the first time provide
enforceable legal remedies for unlawful discrimination by reason of age.

The legislation is similar in structure to the other
Discrimination Acts and contains exemptions and exceptions for positive
discrimination, and relating to charities, religious bodies, voluntary
bodies, superannuation, insurance, taxation, pensions, heath and migration.
Under the other Discrimination Acts if proscribed conduct is one of several
causes for discrimination, the discrimination is unlawful. Under the Bill
however age must be the dominant reason for discrimination before the
discrimination becomes unlawful. The complaints procedures, including
access to the courts, will be the same as for other unlawful discrimination
Acts.

The Commission is generally supportive of the Age Discrimination
Bill, but has a particular concern about the causation test of dominant
purpose.

The proposed dominant purpose test has been identified
by both the employers and by community support groups as important.

The former argue that to allow a finding of unlawful
discrimination where the prescribed personal characteristic of the person
discriminated against is only one of several causes would be to deter
employers from considering the engagement of mature age people, and thus
would defeat the intended purpose of the legislation.

The latter argue that to have a dominant purpose test
would make it far too easy for the discriminator to avoid a finding of
unlawful discrimination. This argument is undoubtedly correct, and for
the same reason a dominant purpose test was taken out of the Racial Discrimination
Act in 1989.

The employers concerns however appear to me to be misplaced
as the definitions of both direct and indirect discrimination in the Bill
are qualified by the usual defence concerning the inherent requirements
of the particular employment. Thus it would not be contrary to the proposed
legislation to advertise for a personal assistant with a keystroke rate
that is so high that mature aged personal assistants are unlikely to achieve
it, or to use the keystroke rate as a criterion in the employers’
selection and termination procedures.

Human resource issues in the workplace concerning pregnancy
have been well canvassed in recent years, especially in HREOC's report
following the National Pregnancy and Work Inquiry entitled "Pregnant
and Productive: It's a right not a privilege to work while pregnant",
published in August 1999. That report was followed by HREOC publishing
Pregnancy Guidelines to help workplace participants to understand and
fulfil their obligations under the Sex Discrimination Act 1984 (Cth) (“the
SDA”). Those guidelines are readily available on the HREOC website.

Section 3.4 of the Guidelines deals with the return to
work after maternity leave, and correctly makes two observations:

"Under
industrial relations laws, awards and agreements as well as the federal
Sex Discrimination Act, an employee is generally entitled to return
to the position she held prior to commencing leave or to a comparable
available position if her original job has ceased to exist ...";
and

"An
employee returning from maternity leave may also wish to work part-time
or on a job-share basis. Awards, agreements, and some State laws specifically
allow for a return to part-time work after maternity leave by agreement
with the employer. In some situations, an employer may be deemed to
have made a discriminatory decision if a reasonable request for part-time
work is refused."

Then follows a comment that there is a growth of precedent
in this area. That growth in precedent has continued. In the last 18 months
or so there have been one Federal Court and four Federal Magistrates Court
decisions concerning discrimination under the SDA alleged by women either
seeking to return to work following maternity leave, or seeking to vary
working hours to meet family responsibilities connected with a young child.

The cases are Thomson v Orica Australia Pty Ltd
[8] Song v Ainsworth Game Technology Pty Ltd
[9], Escobar v Rainbow Printing Pty Ltd (No. 2)
[10], Mayer v Australian Nuclear Science and Technology
Organisation
[11], and Evans v National Crime
Authority
. [12]I shall refer to these cases simply
as Thomson, Song, Escobar, Mayer, and Evans.

Before going to the facts and outcomes of each of these
cases I want to look more broadly at points that I think emerge from them.

In each case the employee after a strenuous denial on
the issues that went to trial was found to have unlawfully discriminated
against the applicant, and significant monetary awards were made.

Within the reasons for decision there is discussion of
both direct and indirect discrimination. The SDA renders unlawful both
types of discrimination in the workplace on the grounds of the sex or
marital status of the aggrieved person, and on the ground of pregnancy
or potential pregnancy. [13] In the case of family responsibilities,
the SDA only renders unlawful direct discrimination on that ground, and
then only if the discrimination results in the dismissal of the employee.
[14]

This is important as there are different tests for direct
and indirect discrimination.

When direct discrimination is alleged the test is whether
by reason of one of the prescribed characteristics the alleged discriminator
has treated the aggrieved person less favourably than, in circumstances
that are the same or not materially different, the discriminator treats
or would treat a person without that characteristic. [15]
This requires the court to identify a comparator and then to determine
whether the aggrieved person has been treated less favourably.

In the case of indirect discrimination the test is quite
different. Indirect discrimination occurs where the employer imposes an
unreasonable condition, requirement or practice that has or is likely
to have the effect of disadvantaging persons who have the prescribed characteristic
- sex, marital status or pregnancy. [16] There is no
need to inquire if the aggrieved person is being less favourably treated
than a comparator. The Act provides that indirect discrimination does
not occur where the imposition of the condition, requirement or practice
is reasonable in the circumstances. [17] As unlawful
discrimination on the ground of family responsibilities can only be direct,
in such a case the reasonableness of the different treatment that constitutes
discrimination is not a defence.

In the four Federal Magistrates Court cases the employer
did not meet a request to work part-time, or to accommodate time off to
meet child care requirements.

In Escobar and Mayer(and by implication
in Song) the court characterised the employers' stance as indirect
discrimination on the ground of sex contrary to s5(2) of the SDA as the
denial had the effect of imposing a requirement to work full-time or during
inflexible times, and such a requirement was likely to disadvantage women.
In Escobar and Mayer the court followed observations
made by Commissioner Elizabeth Evatt in the well-known case of Hickie
v Hunt and Hunt
[18] where she inferred "from
general knowledge that women are far more likely than men to require at
least some periods of part-time work during their career, and in particular
a period of part-time work after maternity leave in order to meet family
responsibilities."
[19]

I do not think that this proposition can be doubted,
and it is likely to be accepted by courts in this area without the need
for evidence. [20] If that is correct, the issue of
contention that will arise in this type of case is whether the imposition
of the requirement is reasonable in the circumstances. The SDA directs
that in applying the reasonableness test matters to be taken into account
include:

(a) the nature
and extent of the disadvantage resulting from the imposition, or proposed
imposition, of the condition, requirement or practise; and

(b) the feasibility
of overcoming or mitigating the disadvantage; and

(c) whether
the disadvantage is proportionate to the results sought by the person
who imposes, or proposes to impose, the condition, requirement or practices."
[21]

These non-exhaustive factors indicate that reasonableness
involves a balancing of matters affecting both the employer and the employee.
The hardship to each must be considered. Section 7C provides: “In
a proceeding under this Act, the burden of proving that an act does not
constitute discrimination because of section 7B lies on the person who
did the act”. Unless the employer demonstrates by evidence the reasons
why in its business the request could not reasonably be met, and, moreover,
demonstrates that it properly understood the situation of the employee
and appropriately took it into account, the employer is likely to lose.
[22]

A strong message about good management comes out of each
of these cases. Significant factors leading to the employee's success
were a failure on the employer's part to take time to properly understand
the reasons for the employee’s request, a failure to properly investigate
whether the request could be accommodated, and a failure by the employer
to reach its decision fairly on the merits.

I turn to the cases. I start with Thomson as
it is a Federal Court decision by Allsop J. It is a very long decision
largely devoted to sorting out disputed facts. The applicant sought to
return after 12 months' maternity leave to her previous position in accordance
with the company's Family Leave Policy. She was offered a job with lower
responsibility, even though the new position carried the same classification
and remuneration. The employer said that there had been a major company
reorganisation during her leave and her former position was no longer
available, but the new position was an equivalent one. The court held
that the reduced responsibilities of the new position rendered it a significant
demotion.

The applicant refused to accept the new job. She alleged
that she had been directly discriminated against on the grounds of her
sex and her pregnancy.

The allegations of pregnancy discrimination were upheld.
Being a direct discrimination case, it was necessary to identify a comparator.
The comparator was a similarly graded non-pregnant employee with similar
experience to the applicant who took 12 months' leave and, having the
same rights to return as the applicant had under the Family Leave Policy,
wanted to return. [23] It was held that such a person
would not have been similarly treated, and the judge noted that no one
on behalf of the employer gave evidence that the comparator would have
received similar treatment. [24] It was held that the
applicant had been arrogantly and shabbily treated by the superior who
made the decision. The superior was hostile that she had taken maternity
leave when she did, and took the advantage of her absence to move her
into a different position during the reorganisation.[25]
It could be added that had she been at work the changes would not have
happened without consultation with her. [26]

Allsop J held that maternity leave is a characteristic
that appertains generally to women who are pregnant. [27]
The applicant was discriminated against because she was on maternity
leave and accordingly there was direct discrimination on the ground of
pregnancy.

His Honour considered that the facts would appear to
bring the case within the prohibition against direct discrimination on
the ground of sex, but noting a decision of Lockhart J in HREOC v
Mount Isa Mines
[28] which held that where the
pregnancy discrimination provisions applied, they operated to the exclusion
of the sex discrimination provisions, he confined his judgment to pregnancy
discrimination.

The change in the responsibility of the job was held
to constitute constructive dismissal as it was plainly inimical to the
continuance of the contract of employment according to its implied terms,
and the employee was entitled to treat the contract at an end.

In the first of the Magistrates' decisions, Song,
the employer refused to allow the applicant to adjust her hours so that
she could take 30 minutes off at 2.55pm to collect her toddler from pre-school
and deliver him to another carer. The employee had at first taken this
time off with her supervisor's permission, but a director of the employer
later disallowed the break, saying it was contrary to the award and there
would be difficulties with the workers compensation insurance. When the
applicant continued to take the same break, the employer re-classified
her as part-time and reduced her wage. Raphael FM held that the reclassification
was a constructive dismissal and that there was direct discrimination
on the ground of family responsibilities.

The magistrate held that the dismissal by reason of family
responsibilities was a discrete ground of unlawfulness, not dependent
on proof of discrimination by reason of sex. [29] I
think that construction of the Act is plainly correct.

However the Federal Magistrate said that if he were wrong
about direct discrimination, the requirement that the applicant work to
the employer’s fixed hours constituted indirect discrimination on
the ground of sex, following the line of reasoning earlier discussed.
The requirement was held to be unreasonable for a combination of reasons.
In fact there was no award or insurance difficulty and the employer should
have clarified that. [30] Further, the employer through
a breakdown in communication had failed properly to understand the applicant's
position. [31]

On those findings the conclusion of indirect discrimination
seems unassailable. However the finding of direct discrimination for family
responsibilities is problematic. Whilst the reasons identify a comparator,
[32] it seems to me at that they do not provide any
convincing explanation why the different treatment given to the applicant
was by reason of her family responsibilities. Other findings suggest that
the less favourable treatment took place because the employer had a misguided
view about the legality of allowing the applicant a mid-afternoon break,
and because he misunderstood the actual hours which of the applicant worked.
The need for proof of the causal link between the less favourable treatment
and the relevant characteristic of the aggrieved person is critical.

The next case is Escobar. That case concerned
an applicant who had been in full-time employment, but when she sought
to return to work at the end of her maternity leave she wanted to work
only part-time. The employer was at first prepared to consider the possibility,
and said the issue would be discussed later. However this did not occur,
and on the day the applicant returned to work she was dismissed as she
would not agree to work full-time.

Again the Court found direct discrimination by reason
of family responsibilities and as dismissal had occurred made a finding
of unlawful discrimination on this basis. The Court also found that the
applicant should succeed on indirect discrimination because of her sex.
[33]

As with Song, the alternative finding of indirect
discrimination seems impeccable given the finding that the imposition
of the requirement of full-time work was unreasonable. In making the finding
of unreasonableness Driver FM did not expressly address the matters specified
in s7B(2). The reasons given for the finding were that the employer’s
original preparedness to consider and discuss part-time work, and that
the employer, knowing that the applicant wanted part time work, nevertheless
without reference to her appointed another full-time employee which eliminated
the scope for flexibility that had otherwise existed. [34]

The finding of direct discrimination once again is problematic.
There is confusion in the judgment about the inter-relationship between
the definition of family responsibilities and the provisions relating
to discrimination on that ground, [35] and the comparator
is not identified.

In addition, as in Song, there are difficulties
with the Federal Magistrate’s reasoning on the issue of causation.
His Honour sought to apply a “but for” test. [36]
The “but for” test may represent a useful practical guide
to causation, particularly if regarded as a “checking exercise”.
[37] However, if not used with care, it will tend to
obscure the real inquiry. [38] Such a criticism might
also be levelled at the reasoning in Escobar. For, on one view
of the findings, the reason for the dismissal was that the original job
had been filled by the employment of another employee. [39]

In Mayer, towards the end of her maternity leave
the applicant applied to return to work part-time so that she could meet
her child carer needs. The employer refused, and the applicant abandoned
her employment. In line with Escobar, the magistrate held that
to require the applicant to work full time was to impose a condition likely
to disadvantage women, and, subject to the reasonableness test, there
had been indirect discrimination. [40] It was held a
refusal of part-time work was not reasonable in the circumstances. The
director who refused the applicant's request did so on the basis that
there was no part-time position available. However internal company documents
showed that this was contrary to advice that had been tendered to the
director by the applicant's immediate supervisor, and the court found
that that there was in fact suitable part-time work available. [41]
Here again, there seems to have been a breakdown in internal communications
that contributed to the refusal of part-time work, and to the finding
of unlawful discrimination.

On the facts as found the conclusion of indirect discrimination
seems inevitable. The case is interesting however for other observations
and findings made by the magistrate. His Honour found that whilst there
had been indirect discrimination on the ground of the applicant’s
sex, there had not been unlawful discrimination by reason of family responsibilities,
even assuming that the applicant had been constructively dismissed. This
finding was made because her former job required a full-time person, and
she would no longer work full-time. Her dismissal was found to be based
entirely on the employer's reasonable business needs, not on the applicant's
family responsibilities. [42] She was not treated less
favourably because of those responsibilities. She was treated as any other
employee would have been who would not fill the position on a full-time
basis.

The employer lost the case because it was unreasonable
in the circumstances not to provide other available work on a part-time
basis.

Incidentally, in Mayer there was also a finding
of direct discrimination for pregnancy because the employer, after receiving
the applicant's request for maternity leave, extended her employment contract
for only one year rather than two years. This was done because the employer
was uncertain whether the applicant would return to work, and if so on
what terms. By extending the contract for the shorter period it was held
that the employer had acted to lessen any potential inconvenience if the
applicant did not return to her former position. [43]
This was a decision plainly related to her pregnancy and the resulting
or maternity leave.

The cases so far reviewed support the general proposition
that if the applicant's former position truly requires a full-time person,
the employer will not be held to have directly discriminated against that
person by not converting the job to a part-time one when the applicant
seeks to return from maternity leave.

However, there may be indirect discrimination if the
decision not to provide other work on a part-time basis cannot pass the
reasonableness test. There may also be indirect sex discrimination if
the decision not to permit flexibility in working hours (as in Song)
cannot pass the reasonableness test.

I have sought to demonstrate that efforts to treat these
kinds of factual situations under the more demanding definition of family
responsibilities discrimination (which can only be direct discrimination)
may be problematic. If similar attempts are made in future matters, particular
care should be exercised in considering whether there is less favourable
treatment as compared to an appropriately identified comparator, and whether
that less favourable treatment was “by reason of” the person’s
family responsibilities.

The final decision I wish to mention, that of Evans,
pays closer attention to those issues than the decisions in Escobar
and Song and is, in my view, a more satisfactory approach
to allegations of direct discrimination relating to family responsibilities

The applicant in Evans cared for a toddler whose
health required her to take days off from time to time, which she did
against medical certificates about the child's health or by drawing on
a considerable credit of unused holiday leave. In the last three months
she had taken eleven days leave.

The applicant's manager expressed his dissatisfaction
about her absences, including by giving her a low performance assessment
and by saying to her on one occasion that if he had known she had a sick
son and could take time off he would not have engaged her. Because of
the manager's attitude, and her fear that her contract might be terminated
if she required further time off, the applicant relinquished her employment.

The magistrate held that the manager's poor handling
of the applicant's situation and her grievances when she protested that
she was entitled to take time off in accordance with her contract, constituted
constructive dismissal. [44] He held that the dismissal
was by reason both of family responsibilities and the applicants' sex.
[45]

The findings of direct discrimination were made after
consideration of appropriate comparators. [46] The magistrate
referred to the significance of the employer not calling evidence on this
topic, saying "if a the respondent wished to assert that it had no
patience whatsoever for people who took their contractual entitlements
and did not treat them less favourably than the applicant it could have
done so with no difficulty whatsoever." [47]

The outcome of these cases was not insignificant for
each of the employers. For example, in the Federal Magistrates' court
matters, in Song a reinstatement order was made returning her to full-time
work with orders for the payment of lost wages in the meantime and $10,000
a for hurt and distress.[48] In Escobar there
was a monetary award for economic and non-economic losses totalling $7,325.
In Mayer the total award was $39,294 including $5,000 for distress.
In Evans the total award was almost $54,500 including $25,000
for non-economic loss as the employer's treatment of the applicant caused
her to suffer clinical depression for some months.

I turn to the other topic concerning an attempted or
actual romance within the workplace.

Unwelcome sexual advances, unwelcome requests for sexual
favours and unwelcome conduct (including statements) of a sexual nature
by one person to another constitute unlawful sexual harassment if a reasonable
person, having regard to all circumstances, would have anticipated that
the person harassed would be offended, humiliate or intimidated. [49]

Conduct caught by this proscription by no stretch of
the imagination could be characterised as romantic or affectionate. Indeed
most of the complaints that HREOC receives concern conduct that is crudely
offensive, generally intended to offend and is based on unequal power
relationships.

A problem for employers, apart from disruption in the
efficient performance of work duties by the harassed employee, and a possible
workers compensation stress claim, arises under section 106 of the SDA.
That section renders the employer vicariously liable for harassing conduct
by an employee, unless the employer can establish that it "took all
reasonable steps to prevent the employee or agent" from doing the
acts which constituted the harassment. The reversed onus of proof makes
this liability easier to establish than a breach of the employers common
law duty of care, and there is no concept in the Act that prevents vicarious
liability where an employee is on an unauthorised personal frolic.

It is now well understood that employers should have
in place preventive policies and procedures for handling harassment when
it occurs. HREOC has published the Sexual Harassment Code of Practice
to assist employers on these matters. The code is on the website.

Conduct however may be a prelude to affection, and may
indeed lead to a consensual romantic relationship. The reality of human
behaviour is that not all relationships that have an affectionate beginning
last, or that they end harmoniously. Christmas parties are one thing,
the return to work a week or so later may be quite another thing.

A failed workplace relationship has the high potential
to lead to harassment, and to a complaint under the SDA.

The termination of a relationship all too often ends
in bitterness, in some cases leading to such things as stalking, and unwanted
or obscene communications. Those problems are magnified where the parties
remain in close physical proximity. All too often in the workplace there
is also a power imbalance between parties that can lead to victimisation.

In such a case, victimisation by the more senior of the
two such as preclusion from advancement, or a change in duties, may not
appear to the uninformed observer or more senior personnel to be conduct
of a sexual nature so as to be unlawful. However, if the failed relationship
is factored in, a court may hold that the victimisation by one of the
parties of the other party constitutes sexual harassment.

How does the employer prevent this type of situation?
How does the employer gain knowledge of a relationship and its failure
in time to manage the fall-out and to prevent sexual harassment?

In America some larger companies have sought to head
off the problem at the outset by requiring new employees to sign contractual
undertakings not to have any sexual relationship with another staff member.
[50]

There are obvious difficulties with this approach. It
is a massive intrusion by the employer into the private affairs of the
employee. Moreover, Cupid is not a party to the contract and may intervene
none-the-less.

Assuming such a contractual undertaking, what does the
employer do in the event of a breach, and at what point would the employer
act on the breach? If the employer learns of the breach whilst the relationship
is still flourishing it is unrealistic to suggest that any demand or injunction
would necessarily end it. Dismissal would be classified as harsh, unjust
or unreasonable and reinstatement would be likely. If the employer does
nothing on learning of the breach how is the ongoing relationship to be
monitored without offending basic privacy rights? If months later the
relationship fails and the employer then decides to act on the breach
of the undertaking, again a court is likely to say dismissal is harsh,
unjust or unreasonable unless actual harassment has already occurred.
Then the potential harm has already occurred.

Other companies in the US now require new employees to
sign a so-called “love contract” promising not to sue their
employer for sexual harassment in the event that a workplace relationship
sours. It is likely that such attempts by employers to avoid liability
under sexual harassment laws would fail as an attempt to defeat the discrimination
legislation.

Another approach recently advocated in Australia [52]
is to require employees to report a relationship to a nominated personnel
officer as soon as it commences. Such a requirement is increasingly common
in employment contracts in Britain. [53] Companies such
as the BBC now require employees to inform a nominated officer of any
sexual relationships with colleagues. Failure to do so may lead to the
termination of employment. Other companies, such as the travel company
Thomson, have asked employees to inform them of any sexual relationship
occurring between colleagues rather than making such disclosure a contractual
requirement. Employees identified as being in a relationship may then
be separated, with one of the employees often moved to another department
or office.

This approach also has its difficulties. It does not
sit well with the principles of the Privacy Act 1988 that information
collected about individuals should be necessary and non-intrusive. The
Office of the Federal Privacy Commissioner is unlikely to support a blanket
disclosure requirement such as required by the BBC. [54]
Commentators in Britain have also warned that such requirements may breach
international human rights laws [55] , such as the right
to privacy (article 17), and the right to freedom of association (article
22) contained in the International Covenant on Civil and Political Rights.

Moreover, people have a tendency to keep relationships
secret, particularly if one of the parties is at the same time in another
relationship. So the employer is likely to be faced with the same difficulties
just mentioned that attach to the American situation.

There is a further difficulty with a reporting requirement.
Depending on its terms, and how the report is likely to be handled, the
requirement might itself be unwelcome conduct by the employer that is
likely to humiliate or intimidate an employee, and amount to harassment.

It should also be noted that due to structural inequalities
in the workplace, men in workplace relationships are quite often in a
more senior position than women. Should employers assume that moving the
more junior of the colleagues is appropriate, the separation of employees
in a workplace relationship may also have a discriminatory effect on women.

I raise these issues without being able to offer concrete
solutions. They are important issues, and by raising them there I hope
to degenerate discussion. How the issues are resolved is likely to vary
from workplace to workplace.

HREOC offers the following suggestions as worthy of consideration.

The approaches by British and American companies outlined
above appear to be directed at preventing employers from being liable
for sexual harassment that occurs in the workplace rather than preventing
sexual harassment from occurring. It may be that rather than introducing
“love contracts”, the best way for employers to avoid sexual
harassment claims is to educate employees about sexual harassment and
have in place the proper mechanisms to deal with it if it does occur.
Enlightened HR practices would dictate that workplace relations are managed
with sensitivity to issues of discrimination and harassment.

It should be uncontroversial to inform employees that
relationships are discouraged because of the risk that they may fail.
Failure can lead to disharmony and conduct by one party to the other that
constitutes harassment within the workplace. The advice could emphasise
that an employee guilty of harassment – even if the conduct relates
to a personal issue – will be subject to disciplinary action. Such
action would be taken into account in deciding whether reasonable steps
had been taken as required by s106 of the SDA.


1. See
the definition of “discrimination” in Human Rights and Equal
Opportunity Commission Act 1986 (Cth), s3.

2.
See the above definition and the Human Rights and Equal Opportunity Commission
Regulations, No. 407 of 1989.

3. Human Rights and Equal Opportunity Commission Act 1986
(Cth), ss11(1)(a) and 46P.

4. Human Rights and Equal Opportunity Commission Act 1986
(Cth), Part II B.

5. Human Rights and Equal Opportunity Commission Act 1986
(Cth), s29.

6. See Review of Changes to the Administration of Federal
Anti Discrimination Law, HREOC 2002 and Change and Continuity: Review
of the Federal Unlawful Discrimination Jurisdiction, September 2000-September
2002, HREOC 2003.

7. The figure in brackets expresses the number of complaints
received under this area as a percentage of total complaints received
by area under the Act.

8. (2002) EOC 93-227; [2002] FCA 939.

9. (2002) EOC 93-194; [2002] FMCA 31.

10. [2002] FMCA 122, digest of decision appears at (2002)
EOC 93-229.

11. [2003] FMCA 209.

12. [2003] FMCA 375.

13. See SDA, ss 5, 6 and 7.

14. See SDA, ss7A and 14(3A).

15. See SDA, ss 5(1), 6(1), 7(1) and 7A.

16. See SDA, ss 5(1), 6(2) and 7(2).

17. See SDA, s 7B.

18. HREOC, Commissioner Evatt, 9 March 1998. Partially
reported at (1998) EOC 92-910.

19. See paragraph 6.17.10, which does not appear in the
reported version of this decision.

20. But if evidence is needed, see the statistics referred
to in Evans at [105].

21. See s 7B (2) of the SDA. This provision was inserted
by the Sex Discrimination Amendment Act 1995 (Cth) which also, inter alia,
inserted s7C and amended the definitions of indirect discrimination. In
his second reading speech, the Attorney General indicated that those reforms
were introduced because “the indirect discrimination provisions
of the act…have proven complicated and difficult to apply in practice
and…have been criticised for being overly technical, legalistic
and complex” (Hansard (House of Representatives), 28 June 1995 at
2460).

22. For example, see Evans at [105].

23. At [122].

24. At [163].

25. At [97], [123] and [163].

26. This was the conclusion reached by Sir Ronald Wilson
in a similar case, Gibb v Australian Wool Corporation (1990) EOC 92-327.


27. At [165].

28. (1993) 46 FCR 301 at 326.

29. At [66].

30. See at [55], [57] and [60].

31. See at [55]-[56].

32. See at [72].

33. Under s5(2) of the SDA.

34. See at [32] and [37].

35. See at [34].

36. See at [36]. His Honour cites the decision of Lockhart
J in Mt Isa Mines v HREOC (1993) 46 FCR 301 as supporting that approach.
However, in that decision, Lockhart J discusses the dangers in too readily
applying the “but for” test (see at 326).

37. See Mt Isa Mines v HREOC (1993) 46 FCR 301 at 326
per Lockhart J.

38. See Thomson at [155].

39. See at [36].

40. See at [69]-[71].

41. See at [75]-[76].

42. See at [68].

43. See at [62].

44. See at [106].

45. See at [101] to [105] and [108]. The reference to
s7 in [98] seems to be a mistake for s5.

46. See at [105] and [108].

47. At [105].

48. Song was appealed, but settled on a confidential
basis prior to the Full Court’s decision being handed down.

49. See section 28A of the SDA.

50.
“Sign a love contract before romancing in the office”, The
Financial Express, 1 November 1998, page 1.

51. “All Work No Play”, Sydney Morning Herald,
26 July 2003, page 28.

52. Ibid; “Love in a Corporate Climate”,
The Age, 26 July 2003, page 3.

53. “Personnel Affair”, The Observer, 20
July 2003, page 1.

54. It should be noted however that s7B(3) of the Privacy
Act exempts acts or practices engaged in by private sector employers from
the coverage of the Privacy Act if the act or practice is directly related
to an employee record held by the employers relating to the employee.

55. “Personnel Affair”, The Observer, 20
July 2003, page 1.