Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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 22 September 2015.

Articles 1 and 2 of the Convention. Legislation and Policy. Federal level. Discrimination on the basis of sex. Sexual harassment. The Committee recalls that in its previous comment it requested the Government to develop and implement a national sexual harassment prevention strategy. The Government indicates that, under the Workplace Gender Equality Act 2012, relevant employers are required to report specifically on sex-based harassment of employees in the workplace, the Workplace Gender Equality Agency offers assistance to employers to develop relevant policies that web-based resources such as “Know the Line Campaign” are also available to support employers in taking action on workplace harassment. The Committee further notes from Australia’s Gender Equality Scorecard for 2015–16, issued by the Workplace Gender Equality Agency, that employers report that there has been a slight increase in the number of employers conducting management training on sex-based harassment prevention and that 97.7 per cent of employers have a policy and/or strategy on the prevention of sex-based harassment. The Committee asks the Government once again to report on any steps taken to develop a national policy on the prevention of sexual harassment. It also asks the Government to provide information on the activities of the Australian Human Rights Commission (CAHRC) and the Sex Discrimination Commissioner to address sexual harassment, including information on the number, nature and outcome of complaints of sexual harassment.

Occupational segregation. Noting from Australia’s Gender Equality Scorecard for 2015–16 that women in leadership positions, including CEOs and key management personnel, scored low at 16.3 and 28.5 per cent respectively, the Committee asks the Government to provide information on any legislative, policy or other measures taken to promote and encourage the appointment of women to leadership positions in both the private and public sectors.

Discrimination on the basis of race, national extraction, colour and religion. The Committee notes the information contained in the Report of the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Australia in 2017 (A/HRC/35/41/Add.2, June 2017, paragraphs 55 and 74a) that there is a significant likelihood that indigenous Australians, persons of African descent, Asians and Muslims will experience discrimination. In this regard, the Special Rapporteur recommends that “Employers [should] consider the possibility of resorting to blind recruitment in order to improve the employment rate for indigenous Australians and members of migrant communities, and to attract the most qualified person for a specific post.” The Committee asks the Government to provide information on any follow-up measures introduced to give effect to this recommendation and any other steps taken to address bias and negative attitudes that may lead to discrimination on these grounds, or that are aimed at promoting equality of opportunity and treatment in employment and occupation irrespective of race, national extraction and religion.

The state level. New South Wales. The Committee notes that the Government Sector Employment Act 2013, No. 40, deletes the section on equal employment opportunity and the mandate for government agencies to prepare equal employment management plans, as set out in the Anti-Discrimination Act, 1977. The Anti-Discrimination Act 1977, now only provides in section 63 that workforce diversity (in respect of gender, cultural and linguistic background, Aboriginal people and people with a disability) should be integrated into workforce planning. While noting that the Act provides that employees in the Government sector should be recruited and promoted on merit, and that affirmative action measures may be taken to facilitate the employment of persons with a disability, Aboriginal people, Torres Strait Islanders and persons under the age of 25, the Committee asks the Government to indicate how discrimination is prohibited and equal opportunity in employment is ensured under this Act, and to supply information on the application of the 2013 Act in practice, including any implementing regulations and any decisions made by tribunals or administrative bodies.

Tasmania. Gender equality. The Committee welcomes the 2016 Government commitment to a target of 50 per cent representation across government boards and committees by June 2020, which is supported by the 2015–20 Five Year Plan and the Tasmanian Women’s Plan 2013–18 aimed at helping to break down barriers that produce inequities for women and girls and asks the Government to continue to report on the development, monitoring and implementation of legislation, policies and plans adopted at the state level.

Article 1(1)(b). Additional grounds of discrimination. Sexual orientation. The Committee notes with interest that the Sex Discrimination Act 1984 has been amended by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013, which expanded the grounds of prohibited discrimination to include sexual orientation, gender identity and intersex status in prescribed areas of public life, including employment and occupation. It also notes with interest the amendments to the Anti Discrimination Act 1998 in Tasmania protecting against discrimination in employment on the basis of gender identity and intersex status, and extending protection against conduct that offends, humiliates, intimidates, insults or ridicules on the grounds of race, age, sexual orientation, lawful sexual activity, disability, gender identity and intersex status. The Committee asks the Government to continue providing information on the application in practice of the new grounds of prohibited discrimination in employment and occupation, including any decisions of tribunals or administrative bodies.

Disability. The Committee notes the adoption of provisions allowing for affirmative action measures in employment for persons with a disability, for example the Australian Public Service Commissioner’s Directions 2013, which include affirmative action measures in respect of the engagement and promotion of persons with a disability in the Australian Public Service. It also notes the various initiatives and measures to promote the employment of persons with disabilities at the national and state levels, including the Disability Taskforce established in the Department of Social Services, the national inquiry of the AHRC into employment discrimination against older persons and persons with disabilities and Western Australia’s “Disability Employment Strategy 2013–15: Ensuring a representative sector”. In its observations, the ACTU expresses concern about the factors evaluated in the Business Wage Assessment Tool (BSWAT) used to determine minimum wages for employees with a disability and their discriminatory impact and refers to the Federal Court decision Nojin v. the Commonwealth of Australia (2012) in which it was found that the BSWAT unfairly discriminated against two workers with an intellectual disability. The Committee asks the Government to provide information on the findings of the inquiry of the AHRC in relation to disability and any follow-up activities undertaken. Noting the concerns of the ACTU regarding the manner in which the wage assessment tools used to determine minimum wages discriminate against persons with disabilities, the Committee asks the Government to reply to the issues raised by the ACTU in its observations and to provide information on how equal opportunity and treatment is promoted for persons with disabilities, particularly in regard to conditions of work and wages.

Age. The Committee notes that the AHRC is conducting a national inquiry into employment discrimination against older workers, which will explore whether Commonwealth laws should be amended, or what other action should be taken to address employment discrimination against older workers. The Committee asks the Government to provide information on the inquiry’s findings and any resulting follow-up action. It also asks the Government to continue providing information on any measures or activities aimed at addressing age discrimination in employment and occupation.