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

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

Article 1(1)(a) of the Convention. Sexual harassment. The Committee recalls its previous comments noting the report of the Australian Human Rights Commission indicating that sexual harassment accounts for one of the largest groups of complaints under the Sex Discrimination Act, and recommending the development and implementation of a national sexual harassment prevention strategy. The Committee notes the recent amendments to section 28G of the Sex Discrimination Act pursuant to the Sex and Age Discrimination Legislation Amendment Act 2011, extending the prohibition of sexual harassment to cover sexual harassment by customers. The Committee also notes the Government’s general indication that the Australian Human Rights Commission has an important role in addressing sexual harassment, through inquiring into alleged infringements of the relevant legislation, and conducting activities to address sexual harassment, including reviewing laws, conducting research, preparing policy advice and undertaking community education programmes. The Committee asks the Government to provide more specific information on the measures taken or envisaged, including with respect to the development of a national sexual harassment policy, to prevent and address sexual harassment in employment and occupation.

Article 1(1)(b). Discrimination based on age. The Committee notes that pursuant to the Sex and Age Discrimination Legislation Amendment Act 2011, the Age Discrimination Act has been amended to create the position of Age Discrimination Commissioner. The Committee notes the Government’s indication that the Commissioner will work with stakeholders to tackle the attitudes and stereotypes that can contribute to age discrimination in the workplace, and will advocate for the rights of people who experience age discrimination. The Committee also notes that a number of initiatives have been launched or are foreseen to address age discrimination in South Australia, including the “Age Matters” project aimed at addressing the underutilization and discrimination that mature-age workers experience in recruitment and employment. The Committee asks the Government to provide information on the specific measures aimed at addressing age discrimination in employment and occupation, including the specific activities of the Age Discrimination Commissioner. The Committee again asks the Government for information on the laws and programmes that continue to be exempted from the Age Discrimination Act. Please also provide information on the results of the various initiatives being undertaken in South Australia to address age discrimination, as well as information in this regard with respect to the other States and the territories.

Article 2. National policy. The Committee notes that in the context of the Human Rights Framework, the Government indicates that it is developing a national human rights action plan, which will outline programmes and action to be undertaken by all levels of Government to promote and protect human rights. The Committee recalls that the Attorney-General had submitted a report on the National Human Rights Consultation, making a range of recommendations, including the adoption of a federal Human Rights Act. The Government indicates that this recommendation has not been accepted, and that it believes it can protect and promote human rights without enacting such legislation, and rather focus on ensuring people understand their human rights and responsibilities, and that laws are developed, drafted and considered by Parliament with a particular focus on ensuring laws are consistent with international human rights obligations. The Committee asks the Government to provide information on the progress made in developing and implementing a national human rights action plan, and to indicate the specific measures taken or envisaged to promote equality of opportunity and treatment in respect of employment and occupation, with a view to the elimination of discrimination on all the grounds set out in the Convention, namely race, colour, sex, religion, political opinion, national extraction and social origin.

Equality between men and women in employment and occupation. The Committee notes that in the context of the reforms undertaken as a consequence of the review of the Equal Opportunity for Women in the Workplace Act, 1999, and the Equal Opportunity for Women in the Workplace Agency (EOWA), the funding to the EOWA will be doubled with a view to modernizing the coverage of the Act, to ensure stronger, fairer and more effective compliance measures and to enhance the role of the EOWA to provide support, advice and assistance to business and industry. The Committee notes the Government initiatives to increase women’s representation in decision-making roles, including the commitment to having at least 40 per cent women and 40 per cent men on Australian Government Boards by 2015; and partnering with the Australian Institute of Company Directors to provide 70 scholarships for women to complete key courses in board directorship. The Committee also notes the Queensland Office for Women’s “Women in Hard Hats” programme, encouraging women to pursue education and career paths in mining, construction, engineering, science and technology, as well as the Women on Boards strategy. The Committee also notes the recent target announced in the Queensland Fire and Rescue Service of increasing the number of permanent female firefighters to 150 in the next five years, including through targeted recruitment and the use of media, increasing understanding of the application process, providing advice and resources to assist with preparation for assessments, and providing ongoing advice. The Committee also notes that the South Australia Strategic Plan was amended with the aim of having women comprise half of all public sector employees by 2014, and that the Premier’s Women’s Directory is often relied upon to assist those responsible for nominating women to government boards and committees. The Committee had previously noted the range of initiatives being taken to promote equality between men and women in employment and occupation, as well as legislative provisions, in particular those introduced to assist workers to balance work and family responsibilities. In this context the Committee had noted that while the Fair Work Act contains provisions for the right to request flexible work arrangements, and for an extension of unpaid parental leave, the employer can refuse such a request on “reasonable business grounds”, a decision which it appears cannot be challenged. The Government replies that pursuant to section 653 of the Fair Work Act, Fair Work Australia is required to conduct research every three years into the operation of the employment standards related to requests for flexible working arrangements and requests for extensions of unpaid leave. The provision requires that research be conducted into the circumstances in which employees make such requests, the outcome of the requests, and the circumstances in which they are refused. Noting that the research on the operation of the provisions on flexible working arrangements and extensions of unpaid parental leave is to be undertaken in 2012, the Committee asks the Government to provide information on the outcome thereof, and to provide information on any measures taken or envisaged, to ensure in practice that workers can make use of such arrangements to assist them in balancing work and family responsibilities. Welcoming the initiatives to increase women’s participation in decision-making roles and in non-traditional jobs, the Committee asks the Government to continue to provide such information, including regarding the impact of such measures, at the federal and state levels. The Committee also asks the Government to provide specific information on the reforms undertaken in the context of the review of the Equal Opportunity for Women in the Workplace Act and the EOWA, and the impact of such reforms on equality and non-discrimination in employment and occupation. The Committee once again requests the Government to provide information on the specific measures taken or envisaged, and the result thereof, to address discrimination in education and employment of migrant, refugee and minority women.

Equality of opportunity and treatment irrespective of disability. The Committee notes the “Career Starts” programme to support graduates with disabilities in Victoria into professional and semi-professional positions in the public and community sector. The Committee notes that as of April 2011, 328 graduates had been accepted into the programme, with 160 having been placed in employment. The Committee asks the Government to continue to provide information on the measures taken to promote equality of opportunity and treatment of workers with disabilities, and the impact of such measures in Victoria, and also requests information relating to the other States.

Parts III and IV of the report form. Supervision and enforcement. The Committee had previously noted the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs, including proposals to increase the power of the Sex Discrimination Commissioner to monitor progress, and investigate alleged breaches of the Sex Discrimination Act without requiring an individual complaint, as well as expanding the powers of the Human Rights Commission. The Committee notes that in the context of the recently launched Human Rights Framework, the Government indicates that it has committed to considering the role and functions of the Australian Human Rights Commission, including the specific powers of the Sex Discrimination Commissioner. The Government also indicates that it is expected that the review of the EOWA will lead to stronger, fairer and more effective compliance measures. The Committee notes the information provided by the Government regarding the cases addressed by the Fair Work Ombudsman, indicating that discrimination based on disability, pregnancy and race were the most common subjects of complaints. The Committee welcomes the summaries provided of the relevant decisions of the Federal Magistrates Court, Fair Work Australia, the Northern Territory Anti-Discrimination Commissioner, the Queensland Anti-Discrimination Tribunal and the Civil and Administrative Tribunal, the South Australia Equal Opportunities Tribunal, and the Western Australia State Administrative Tribunal. The Committee also notes from the Government’s report that data is kept on the number and nature of complaints lodged by Aboriginal people, people from ethnic minorities and women, though this data was not provided to the Committee. The Committee requests the Government to provide specific information on the number and nature of complaints lodged, including with respect to all the States and territories, disaggregated by sex and ethnic or indigenous origin, as well as summaries of the decisions of particular relevance to the principles of the Convention, including relating to exceptions to non-discrimination provisions. Please continue to provide information on the role of the Office of the Workplace Ombudsman in promoting and enforcing non-discrimination in employment and occupation. The Committee also asks the Government to provide information on the progress made in reviewing the Australian Human Rights Commission, including the powers of the Sex Discrimination Commissioner, and the EOWA with a view to improving monitoring of and compliance with the relevant provisions concerning equality and non-discrimination in employment and occupation. Recalling that pursuant to section 539 of the Fair Work Act, among the non-discrimination provisions, section 351 is a civil remedy provision, but sections 153 and 195 are not, the Committee again requests the Government to clarify how violations of sections 153 and 195 are addressed, including the remedies and sanctions available.