Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Australia (Ratification: 1973)

1. Further to its previous comments, the Committee notes the detailed information communicated by the Government in its report, in particular the further progress achieved in implementing the Convention at both the state and federal levels.

I. Federal level

2. The Committee notes the beginning of operations of the Human Rights and Equal Opportunity Commission in 1986, which is now responsible for administering the legislation implementing several international human rights instruments including the present Convention. The Committee also notes that the Commission provides a process whereby complaints of discrimination may be conciliated. It notes in particular that an advisory committee is to be established to report to the Minister on any action that may need to be taken to comply with the Convention; that consultations have been held with representatives from federal and state governments, with the Australian Trades Union Congress and the Confederation of Australian Industry; and that the formation of the advisory committee is expected in the very near future. Please indicate whether this committee has been established, and what recommendations it has made, if any.

3. The Committee also notes with interest the adoption of the Equal Opportunity (Commonwealth Authorities) Act, 1987, which applies to Commonwealth authorities employing 40 or more staff that are not covered by other Commonwealth equal opportunity or affirmative action legislation. The Committee hopes that the Government will indicate in its future reports the action taken under the Act to develop equal opportunity programmes for women, Aborigines, Torres Strait Islanders, certain migrant workers and the disabled.

4. In its previous comments the Committee noted that the Affirmative Action (Equal Employment Opportunities for Women) Act, 1986, applies to employers with 100 or more employees. It notes from the Government's report that there is presently no intention of extending its coverage to smaller employers, but that a review of its effectiveness is to be undertaken after five years. Please indicate in future reports if the Act's coverage has been extended.

5. The Committee recalls that under the Public Service Act, as amended in 1984, all government departments are to develop equal employment opportunity programmes. Please indicate whether all government departments have now formulated such programmes and whether they have been approved; and whether the review process provided for in the legislation has yielded subsequent improvements in these programmes.

6. The Committee notes that most of the information in the report concerning federal action deals with measures taken to combat discrimination against women, or against discrimination in general terms. The Committee hopes that the Government will provide more information in its next report also on the situation of the Aborigines with regard to employment and equal opportunity, and on any practical measures it may be taking in this connection.

II. State level

7. The Committee notes that in Victoria the Commissioner for Equal Opportunity is now empowered to initiate investigations in certain cases of alleged serious discrimination, under the Equal Opportunities (Amendment) Act, 1987, and hopes that the Government will inform it in future reports of the action taken in this regard.

8. The Committee also notes the Tenth Annual Report of the Comissioner of Equal Opportunity and the Equal Opportunity Board for the year ending 30 June 1987. The Committee takes particular note, from the Board's report, of section 40 of the Equal Opportunity Act, 1984, under which an exemption may be granted "from any of the provisions of the Act". Section 40 establishes no criteria for granting exemptions. The Committee has noted with interest the manner in which exemptions were granted during the year covered by the report, but considers that section 40 should be amended to make it applicable only to those cases where the inherent requirements of a particular job require a distinction, exclusion or preference which would otherwise amount to prohibited discrimination, as provided in Article 1, paragraph 2, of the Convention.

9. In New South Wales, the Committee notes from the Government's report that under section 54 of the NSW Anti-Discrimination Act, 1977, anything done by a person in compliance with any other Act, regulation, ordinance, by-law or other instrument, whether passed before or after this Act, is exempt from the general prohibition on discrimination. It notes further the removal of discriminatory provisions from legislation by the Miscellaneous Acts (Sex Discrimination) Amendment Act, 1987, but that other, mainly sex-related, discrimination provisions remain. Please indicate in the next report whether section 54 of the Anti-discrimination Act has been invoked in practice, and what consideration may have been given to amending it.

10. The Committee also notes from the report that both the federal Sex Discrimination Act and the state Anti-discrimination Act specifically exclude awards from their coverage, and that therefore discrimination in awards is not illegal although they provide the basis on which some 90 per cent of the workers in New South Wales are employed. It notes that the Women's Directorate in the state has been carrying out a review of discriminatory provisions in awards, and that reports and recommendations have been made on 300 awards, but that it is not known what amendments may have been made as a consequence. The Committee hopes that the Government will indicate in its next report what consideration may have been given to bringing this situation more closely into line with the Convention, and whether information is now available on the results achieved in amending awards which contain discriminatory provisions.

11. The Committee notes that the Women's Directorate receives many complaints and inquiries about discrimination related to pregnancy and maternity leave, and in which existing legislative provisions are inadequate or poorly understood. It hopes that the Government will indicate in its next report what measures have been taken or are under consideration to overcome these difficulties.

12. The Committee notes also the further detailed information on the activities of the Women's Directorate since its creation in 1984, and the positive results so far achieved. It hopes that the Government will continue to supply information in this regard in its future reports, particularly with regard to women's access to technical and further education, and on the public sector.

13. In Queensland the Committee notes the adoption of the Public Service Management and Employment Act, 1988, sections 7 and 32 of which contain provisions affecting the application of the Convention.

14. The Committee also notes that by a Decision of 16 June 1987 the Industrial Conciliation and Arbitration Commission of Queensland made a decision of policy in relation to termination of employment, introduction of changes and redundancy, including a clause by which the Commission could find that a dismissal is based on unacceptable discrimination; the Government has stated, however, that the Commission decided that these standards would only be inserted into awards and industrial agreements on application by the appropriate party, where the need was shown to exist. Please indicate the cases in which this has been done, and whether any such applications have been refused.

15. The Committee notes from the information forwarded in reply to its previous direct request that the State participates in the Commonwealth Aboriginal Employment Development Policy, and that the state government has now formulated a Queensland Public Service Aboriginal and Torres Strait Islander Employment Strategy to assist these groups in pursuing employment and career activities in the Queensland public service. Please provide further details in the next report on the contents of this strategy and on the results so far achieved.

16. The Committee also repeats the hope that the next report will contain more detailed information on the practical measures taken or envisaged to promote equality of opportunity and treatment in employment both in the public and private sectors, noting that the information furnished in the last report concentrated on the public sector.

17. The Committee notes from the report that in Tasmania there is no specific legislation relevant to the application of the Convention; that anti-discrimination legislation was introduced in the Tasmanian Parliament in 1978 and 1979 but not passed; and that it has long been the policy of the Tasmanian Government to repeal any statutory provisions which apply to specific groups on the basis of sex. The Committee hopes that the Government will include a more detailed indication in its next report of any problems that may have arisen in this regard in Tasmania.

18. As concerns Western Australia, the Committee notes that the review of discriminatory provisions in legislation was expected to be completed in June 1989, and requests the Government to indicate the findings of this review when it is completed. It notes that in the interim certain changes to legislation have gone ahead to remove discriminatory provisions. It notes also that a review of industrial awards for discriminatory provisions was completed in 1987, but that there have so far been few changes to awards; however, if they are found to be discriminatory on being challenged they must be changed. Please provide further information in this regard in the next report.