Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 31 August 2011.

Legislative developments. Federal. The Committee previously noted the adoption of the Fair Work Act, 2009, and the various improvements in protection from discrimination at work, and notes that as of 1 January 2010, the States, with the exception of Western Australia, have referred their industrial relations powers to the Commonwealth. Thus the Fair Work Act now applies to all employers and employees in Victoria, the Northern Territory and the Australian Capital Territory; to private sector employers in New South Wales, Queensland, South Australia and Tasmania; local government employers in Tasmania; and national system employers and employees in Western Australia. The Committee also notes the Government’s indication that it has launched the Human Rights Framework, with the anti-discrimination consolidation project as a key element, with a view to streamlining five Commonwealth anti-discrimination acts into a single comprehensive law. The Committee welcomes the recent enactment of the Sex and Age Discrimination Legislation Amendment Act 2011, as a result of which the Sex Discrimination Act now makes specific reference to Convention No. 111, includes breastfeeding as a ground of discrimination, and extends protection against direct discrimination on the ground of family responsibilities to both women and men in all areas of employment, rather than limiting it to dismissal as was previously the case. On the issue of workers with family responsibilities, the Committee refers to its comments under the Workers with Family Responsibilities Convention, 1981 (No. 156). The Committee notes that the ACTU indicates that the majority of the recommendations made in the report of December 2008 of the Senate Standing Committee on Legal and Constitutional Affairs regarding the effectiveness of the Sex Discrimination Act, have been referred to the Attorney General and the Department of Finance and De-regulation for consideration as part of the project to harmonize the anti-discrimination legislation. Noting the aim of the harmonization project to “remove unnecessary regulatory overlap, address inconsistencies across laws and make the system more user-friendly”, the ACTU states that it has serious reservations about the capacity of the process to deal adequately with the Senate Committee’s recommendations, which the ACTU considers go to substantial reform of the legislation, and in this context calls for a more robust consultation process and for a review aimed at rendering the legislation more effective by addressing all the recommendations of the Senate Committee. The Committee also notes the Government’s indication that a review of the Equal Opportunity for Women in the Workplace Act, 1999, and the Equal Opportunity for Women in the Workplace Agency (EOWA) is ongoing, and that it will lead to modernizing the coverage of the Act to better reflect the goal of gender equality through encompassing women and men, particularly in relation to caring responsibilities, explicitly referring to pay equity, and requiring employers to report on the gender composition of their boards. The ACTU calls on the Government to ensure in the review process that “streamlining” of the equal employment opportunity (EEO) reporting process does not compromise the quality of data collected in the reports, and indicates that the role foreseen for employee representatives to participate in the reporting process and to sign off on reports should be taken seriously, and steps need to be taken to ensure they are truly independent and adequately resourced. The Committee asks the Government to provide information on the application of the Fair Work Act with respect to the implementation of the principles of the Convention. The Committee also requests information on the progress made in the anti-discrimination consolidation project and other initiatives under the Human Rights Framework, as they relate to non-discrimination and equality in employment and occupation, including specific information on the consultation process and the implementation of the Senate Committee’s recommendations. The Committee also requests the Government to provide information on the status of the adoption of the amendments to the Equal Opportunity for Women in the Workplace Act, and to reply to the issues raised by the ACTU in this respect.

Legislative developments. State. The Committee notes that the Equal Opportunity Act, 1984 of Western Australia was amended pursuant to Act No. 2 of 2010, to include breastfeeding and bottle feeding an infant as prohibited grounds of discrimination. The Committee also notes that the Equal Opportunity Act, 1995 of Victoria was replaced by the Equal Opportunity Act, 2010 which came into force in August 2011. ACTU raises concerns regarding the changes to the Victoria Act, in particular with respect to the extension of the “permanent exceptions” in the Act, enabling discrimination by faith-based groups and schools, and the limitations on the powers of the Victorian Equal Opportunities Commission. The Committee asks the Government to continue to provide information on new or revised legislation on non-discrimination and equality of the States and territories, as well as information on its application in practice. The Committee also asks the Government to provide information on the practical application of the new Equal Opportunity Act, 2010 of Victoria, and to respond in particular to the concerns raised by the ACTU.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. The Committee previously noted concerns regarding the Northern Territory Emergency Response (NTER), which resulted in restrictions on the rights of indigenous peoples to land, property, work and remedies. The Committee had also noted activities in the extractive sector affecting indigenous peoples’ rights to land and livelihoods, as well as difficulties related to the Native Title Act, 1993, for the recognition of traditional lands. The Committee notes the Government’s indication that since 31 December 2010, aboriginal peoples affected by the NTER have been able to bring proceedings under the Racial Discrimination Act before the Australian Human Rights Commission. With respect to the five year leases, resulting in compulsory acquisition of townships which had been held under the title provisions of the Native Title Act, the Government replies that the leases were necessary for urgent delivery of government services and capital investments to remote indigenous communities, that all pre-existing rights, titles and interests on aboriginal lands are preserved under the leases, and that the Government is committed to the payment of fair rent to traditional aboriginal owners, and that traditional aboriginal owners may negotiate for continuing access to land and engagement in traditional occupations. The Government also states that national consultations will begin soon with people in remote indigenous communities, service providers, employers and other stakeholders on how to improve participation and employment services, with a view to putting in place new arrangements by 2013, which will focus on maximizing local employment. The Committee also notes the NTER Evaluation Report of November 2011, prepared pursuant to the National Partnership Agreement for Closing the Gap in the Northern Territory. The report finds that new measures to improve enrolment and attendance at school and the extent and sustainability of the economic base are needed, with education and jobs being critical to the well-being of the communities. It concludes that employment remains low and narrowly based, and access to jobs remains a key problem for communities and a challenge to the sustainability of improvements. The report also concludes that a number of the measures, including those related to the employment projects and changes in land tenure, are likely to have contributed to people’s feeling of loss of freedom, empowerment and community control. In the report “Leading practice agreements: maximizing outcomes from native title benefits” of November 2010, the Committee notes that the Australian Human Rights Commission makes a number of recommendations, including regarding the need for improved consultation and cooperation with Aboriginal and Torres Strait Islander peoples before adopting or implementing any legislative or administrative measures relating to native title reforms. The Committee asks the Government to provide information on measures taken or envisaged to address the findings and conclusions of the NTER Evaluation Report, as well as the recommendations of the Australian Human Rights Commission. The Committee also asks the Government to provide specific information on the measures taken or envisaged to ensure that indigenous peoples have access to land and resources to allow them to engage in their traditional occupations. Please also provide detailed information on any concrete measures to address discrimination against indigenous peoples due to the NTER with respect to employment and occupation, and access to remedies. Please also provide information on any cases brought under the Racial Discrimination Act related to the NTER.

Equality of opportunity and treatment of indigenous peoples. The Committee notes from the 2011 report of the Aboriginal and Torres Strait Islander Social Justice Commissioner, “Constitutional Reform: Creating a nation for all of us” that there is bipartisan political support to recognize specifically Aboriginal and Torres Strait Islander peoples in the Constitution. The Committee also notes the range of initiatives being undertaken in some of the states and territories to promote equality of opportunity and treatment of indigenous peoples and address discrimination. The Committee notes in particular the Queensland Indigenous Women’s Strategy to support indigenous women’s economic prosperity and leadership opportunities and capabilities. The Committee also notes that pursuant to the Victoria Aboriginal Economic Development Agenda, a range of initiatives are being undertaken to improve the economic and development outcomes of indigenous peoples, including through the indigenous jobseekers programme, which has resulted in 230 indigenous jobseekers being placed in employment since the programme began in May 2010. The programme also includes the engagement of aboriginal employment brokers, establishing an aboriginal employment resource centre and providing scholarships linked to employment. Victoria has also enacted the Traditional Owner Settlement Act 2010, providing for settlement of claims under the federal Native Title Act. The Government also states that the Office of the Commissioner for Public Employment of the Northern Territory is running a project focusing on capacity building and leadership training for indigenous women in the workforce. The Committee asks the Government to continue to provide information on the measures taken by all the States and territories to address discrimination and promote equality in employment and occupation of indigenous peoples, and to indicate the results achieved. Noting that no information has been provided regarding the impact of the measures previously noted being undertaken at the federal level, including with regard to the “Closing the Gap” targets, the Indigenous Employment Programme, the Commonwealth Indigenous Economic Development Strategy, the new Community Support Programme or the Job Network, the Committee asks the Government to provide specific information in this regard, as well as information on any other federal initiatives aimed at promoting equality of indigenous peoples and addressing discrimination against them. Please also provide information on the status of the process to recognize specifically Aboriginal and Torres Strait Islander peoples in the Constitution.

The Committee is raising other points in a request addressed directly to the Government.