The role of HREOC in the industrial relations scene: recent developments and future directions
Address by President John von Doussa to the South Australian Industrial Relations Society
28 August 2006
I would like to begin by acknowledging the Kaurna people on whose ancestral land we meet today.
The implications of WorkChoices for HREOC
What I plan to do tonight is to talk about the implications of the new WorkChoices laws for HREOC - what's changed and what's stayed the same.
I'll start with what's stayed the same. The fundamental restructuring of Australia's workplace relations system has left the functions of HREOC untouched. In particular there is no change in its responsibilities to investigate and conciliate complaints of unlawful discrimination.
By leaving HREOC's functions intact the Government has clearly recognized the importance of protecting people in the workplace from discrimination and unlawful termination. In the same vein, the prohibitions against unlawful termination remain in the Workplace Relations Act 1996.
While companies with fewer than 100 employees are now exempt from unfair dismissal laws, all businesses, regardless of their size, must still adhere to federal and state equal opportunity laws.
That said the workplace relations reforms do have important implications for HREOC.
Firstly, in the new workplace environment HREOC is receiving an increased number of employment related complaints under federal discrimination laws.
Secondly, under our education function HREOC has an obligation to provide information and strategies to promote the acceptance of human rights in Australia. As part of this function HREOC through mailouts and forums has been reminding employers and employees about their rights and obligations under federal discrimination laws.
More broadly, from a human rights perspective we are also concerned about the impact of the increased focus of individual bargaining on more vulnerable workers. Some of the individual complaints we have received give us cause to be concerned that discriminatory provisions - like bonuses for employees who take no sick or careers leave - are creeping into workplace agreements.
There is also evidence that women are less likely to strike strong bargains on pay than men - research that creates real concerns about the future of pay equity.
The way these issues are addressed will have a major impact on the capacity of Australian workers to balance work and family life. This topic is currently occupying our Sex Discrimination Commissioner Pru Goward and the Sex Discrimination Unit as they prepare the Striking the Balance: Women, men, family, work Report - a blue print for what Governments, business, community based organisations and policy makers can do to better help women, and men, balance their paid work and family.
Before I discuss some of the changes HREOC has observed about employment related complaints, I give a brief overview of HREOC's functions.
HREOC's complaint functions
HREOC is a statutory body independent of government. While our main function is to promote an understanding and acceptance of human rights in Australia, we are also charged with the responsibilities of investigating, and attempting to conciliate complaints of unlawful discrimination under the federal Racial Discrimination Act 1975 , the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.
HREOC also has similar functions that are perhaps less well understood arising under the provisions in Part II of the Human Rights and 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 (ILO Convention 111), which is a Schedule to the HREOC Act.
Under these provisions, HREOC can receive complaints of discrimination in the workplace on many grounds, including religion, political opinion, medical record, criminal record, marital status, sexual preference, or trade union activity.
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. All complaints are initially assessed in the same way to determine whether the complaint should be terminated as lacking in substance, and if not, whether it is suitable for conciliation.
While a complainant who alleges unlawful discrimination under one of the discrimination acts can seek remedies through the Federal Court or the Federal Magistrates Court if conciliation fails, the ILO 111 complaints procedure does not provide an enforceable remedy. The President merely reports to the Attorney General that a contravention has occurred, and the report is tabled in Parliament.
Not withstanding this limitation we still get quite a number of ILO complaints. In the last financial year we received 87 complaints on grounds not covered by the unlawful discrimination Acts - 34 were on the ground of criminal record, 16 on the ground of religion, and 15 on the ground of trade union activity.
The conciliation process
HREOC stresses at the outset to the parties that it is not an advocate for either side. As an independent and unbiased conciliator HREOC's goal is to resolve the complaint in a fair and timely process with the minimum cost and stress for either party. To this end we hold conciliation conferences anywhere Australia.
In recent years there has been a continual increase in our conciliation rate: in 2005-2006 39 per cent of all complaints received were successfully conciliated. In 75 per cent of those matters were conciliation was attempted, the matter was resolved.
A recent case study will illustrate how the conciliation process works.
Jamie claimed that he was discriminated against because of his race during his employment with the respondent manufacturing company. The complainant alleged he was called a 'black bastard', referred to as 'monkey' and asked "Where is there a well developed black country". Jamie claimed that he was over scrutinized compared to other employees and that he eventually resigned because of pressure put on him.
When the complaint was received, as it appeared to fall within the ambit of the RDA, the employer - the respondent - was asked in writing for a response. Almost invariably responses are forthcoming, as one was in this case.
The respondent denied that Jamie had suffered racial discrimination. While the company agreed that one employee had called Jamie a black bastard, it claimed there was no offence intended and an apology had been offered.
The parties agreed to participate in a conciliation conference. Through the conciliation process the complaint was resolved. The company agreed to pay Jamie $10,000 compensation, provide a verbal reference to prospective employees and under-take anti-discrimination training for its staff.
You will note that our process is investigation based. If a response is inadequate we follow it up by phone. Before a conference we contact both sides and explain the process, and make sure they understand the issues. We try and make the exercise user friendly.
When WorkChoices was about to start, some in the media anticipated that the Equal Opportunity Commissions would be encouraging people who had been terminated to pursue discrimination cases - and inferred that EOCs would become advocates for the employee cause. Our answer to that is that we survey a large number of parties who participate in conciliation and seek their assessment of the objectivity of the process. We consistently get percentage ratings from both sides in the 80 -90% satisfaction bracket, and usually slightly higher from respondents than complainants.
Of course, it is not always possible to conciliate a complaint. If a complaint of unlawful discrimination cannot be conciliated, it will be terminated by the President, and the complainant then has 28 days to apply to the Court.
The example just given was a complaint made after the employment had come to an end. It could have been argued that there had been a constructive dismissal, and the matter could have been pursued under the Workplace Relations Act. Had that happened, the process there would have been similar - conciliation first, and only if it failed would the worker have then had the option of going to court.
But it is important to recognize that the unlawful discrimination Acts that HREOC administers provide remedies for discrimination where the employment relationship is still ongoing. Indeed this is the case in many of the employment related complaints we process. Our staff are very conscious of the need to try and preserve the relationship.
One of the advantages of HREOC's complaint process is that it has the potential to result in a range of outcomes including general damages, policy changes and apologies. Often by getting the parties to the table not only is the matter of complaint sorted out, but the relationship is saved. Only very occasionally is it necessary to refer to the anti-victimisation provisions in our legislation.
Another advantage of the HREOC process relevant to termination cases is that a 21 day time limit applies to applications to the AIRC, but there is no absolute time limit on complaints to HREOC. The President can decline to investigate a complaint more than 12 months old, but even then the complaint can still be taken to Court.
Complaints in employment related areas - recent developments and trends
One of the most significant features of the WorkChoices legislation is that small businesses are no longer bound by unfair dismissal laws. Legal commentators predicted a significant increase in discrimination complaints and unlawful termination actions.
At this stage our expectation that there would be an increase in the number of employment related complaints is proving correct.
Employment is always the main area of complaint under federal anti-discrimination legislation. Since April 2006 started we have seen a significant increase in the number of employment related complaints- most notably under the Disability Discrimination Act and the Racial Discrimination Act.
In April-June HREOC 2005 received 170 complaints related to employment including 26 where the complainant had been dismissed. In the same period this year the number of complaints has risen to 278 complaints relating to employment including 126 where the complainant had been dismissed.
This is a 63 per cent increase in employment related complaints.
We are also receiving many more enquiries from employers and employees about their rights and obligations under federal discrimination laws.
We are seeking to educate both employers and employees about their obligations and rights in the new WorkChoices regime. Our web site has separate sections for each group.
Employers are encouraged to create a discrimination and harassment free environment through our 'Good practice, good business guide'.
Employees can obtain information about their rights under discrimination law on our 'Work out your rights' website.
Our complaints handling section is also holding information sessions for employers, employees and their representatives on what constitutes unlawful discrimination and the HREOC complaints process.
The impact of increasing individual bargaining on vulnerable workers
The type of complaints we are investigating in the post WorkChoices environment suggest that while most employers know that direct discrimination in the workplace is unlawful, the concept of indirect discrimination is not as well understood.
Of course, indirect discrimination is not a new problem. But as people move away from collective bargaining we are concerned about the type of provisions that we are seeing in some Australian Workplace Agreements.
Let's take for example a complaint from Susan who was dismissed after four months in a new job for 'misconduct' - for taking two days leave, one to attend a funeral and another to care for her sick child, and for being 'difficult about putting in extra hours'.
Her workplace agreement indicated she would be expected to work 'standard hours of work' and that the 'company leave policy' would apply. However, that policy did not allow any leave in the first 12 months of employment. After a year in the job she could take leave but only if she gave four weeks notice and took a leave for a minimum of one week.
The company's standard work hours were 9-5 and the complainant asked for any meetings that she was required to attend finish by 5:30 so she could pick her son up from child care.
Despite this request Susan was frequently asked to attend meetings outside of standard work hours; a practice which increased her child care fees and jeopardized her place with the child care centre.
Provisions like this appear to be discriminatory against women on the ground of sex for the very reason that women are much more likely to be affected by this type of requirement than men - women in our society carry the main responsibility for looking after children.
A complaint from Nathan, who suffers from epilepsy, illustrates the types of provisions that are presenting problems for people with disabilities. Nathan's epilepsy is well controlled but still occasionally requires him to have a day of work. This meant that when Nathan's employer introduced a policy which excluded anyone from taking unplanned leave from bonuses this provision appears to have a discriminatory effect on Nathan, as compared to other employees.
These examples present important issues - both for the Office of the Employment Advocate - which is charged with finding discriminatory provisions in work place agreements - and for employers and employees.
Flexibility - a double edged sword
The new post WorkChoices focus on individual bargaining is something of a double edged sword. In principle a more flexible approach to working hours should make it easier for women - and men - to negotiate a better balance between work and family commitments. No doubt there will be winners in the new work place agreement.
However, HREOC is deeply concerned about the capacity of vulnerable workers to effectively negotiate strong workplace agreements. The sections of the community who have traditionally faced barriers in the labour market are again likely to lose out- people with disabilities, women, young people, Indigenous people, and people working in low wage jobs.
danger is that the focus on individual bargaining will result in 'hours
flexibility' - or in other words longer operating hours - but
no real flexibility for employees in negotiating the balance between work and
family life. In other words, for some people the new flexibility may result in
irregular working hours, difficulties organizing - and retaining -
child care services and less time with the kids.
As you may know there are a number of studies which suggest that women are less likely to benefit from a culture of individual bargaining than men. For those women on enterprise agreements, the level of wages negotiated tends to be lower.  This clearly creates concerns about how to ensure the gender wage gap gets smaller not larger - the average weekly earnings for full-time women workers is still only 84.4% of their male equivalents.
One of the positive developments that HREOC has seen is that there are employers who are taking on leadership roles in promoting work-life balance amongst their employees and taking responsibility for narrowing the gender pay gap.
In February 2006, the National Australia Bank became the first employer to commit to a pay equity audit.
HREOC plans to keep working with employers and employees to create a better understanding of federal discrimination laws. We will also continue to monitor emerging trends in complaints.
Ultimately, HREOC believes that it is vital to a flexible, fair and productive workforce that Australian workers be able to negotiate wages and conditions effectively and meet their social and family obligations.
 Now s 659 Workplace Relations Act 1996.
 Indirect discrimination involves: (a) imposing a requirement or condition
which (b) disadvantages people with a particular attribute covered by law
- for example in the SDA, people of the same sex as the aggrieved person
and (c) which is not reasonable in the circumstances.
 Hickie v Hunt and Hunt (1998) Commissioner Evatt.
 In May 2004, women on registered collective agreements received average hourly earnings of $22.50 compared to men's $25.10, and on unregistered collective agreements received $20.30 compared to $22.00: ABS Employee Earnings and Hours Cat No 6306.0 May 2004.