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.

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