Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

Previous observation and previous direct request

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received with the Government’s report.

Articles 1 and 2 of the Convention. Legislative developments and enforcement. Gender equality. Federal level. The Committee notes with interest the following legislative amendments: (1) the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 which amends the Australian Human Rights Commission Act 1986, and changes the threshold from 6 to 24 months for the discretion to terminate a complaint made under the Sex Discrimination Act 1984 since the alleged unlawful discrimination occurred; (2) the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which amends the Fair Work Act by, inter alia: (a) widening the scope for employees to request flexible work; (b) extending the right to unpaid parental leave; (c) adding breast feeding, gender identity and intersex status as prohibited grounds of discrimination; and (d) clarifying how and when a ‘special measure’ clause in an enterprise agreement will be considered as not being discriminatory and when it must cease to exist; (3) the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, which further amends the Sex Discrimination Act 1984, the Australian Human Rights Commission Act 1986, the Workplace Gender Equality Act 2012, the Age Discrimination Act 2004, the Disability Discrimination Act 1992 and the Racial Discrimination Act 1975. This Amendment Act introduces, among many other measures, a positive duty on the Australia Human Rights Commission (AHRC) in relation to discrimination and expands its powers to investigate into any matter relating to systemic or suspected systemic discrimination, and to ensure compliance with the legislation; and (4) the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1), to facilitate reporting by employers to the Workplace Gender Equality Agency, following a review of the Workplace Gender Equality Act 2012 undertaken in late 2021.

The Committee notes the information provided by Government in its report according to which, the Australian Human Rights Commission (AHRC) received 3,113 complaints under federal anti-discrimination and human rights laws between 2020–2021. The AHRC finalized 2,624 complaints during this period and conducted approximately 1,517 conciliation processes of which 70 per cent were successfully resolved. Complaints about employment made up 72 per cent of all complaints under the Sex Discrimination Act. The Committee asks the Government to continue to provide information on: (i) any new legislative developments or amendments made to the federal anti-discrimination laws; and (ii) the application in practice of the above-mentioned legislative amendments and their impact in achieving effective equality of opportunity and treatment in occupation and employment.

Article 1(1)(a). Discrimination based on religion. Inherent requirement of the job. State level. Victoria. The Committee notes with interest the Government’s indication that it has amended the Equal Opportunity Act 2010 to provide that religious organizations and educational institutions are prohibited from discriminating against people on the basis of protected attributes such as sexuality, gender identity or marital status when making employment decisions (new sections 82A and 83A). The Act now allows religious bodies and educational institutions to discriminate only against employees or potential employees on the basis of religious belief or activity where conformity with religious beliefs is an inherent (defined as “core, essential or important”) requirement of the job and the discrimination is reasonable and proportionate in the circumstances. The Committee asks the Government to provide information on how the amendment to the Equal Opportunity Act has been applied in practice, by providing examples of cases where the “inherent requirement” test was successfully used by an employer to discriminate against an employee or potential employee as well as cases where courts or agencies have rejected an employer’s assertion of the test.

Discrimination based on sex. Sexual harassment. With reference to its previous comment, the Committee notes the Government’s indication that following a national inquiry into sexual harassment, the AHRC published, in 2020, the “Respect@Work Report”, which found that 33 per cent of Australian employees have experienced sexual harassment in the workplace in the past five years (39 per cent of women and 26 per cent of men). While employees in some types of workplaces were more likely to experience harassment than others, the Report concluded that sexual harassment occurs in every industry, in every location and at every level, in Australian workplaces. The Committee notes that the Respect@Work Report made 55 recommendations addressed to all levels of government, the private sector and the community in order to reduce the prevalence of sexual harassment in workplaces, and provide greater support when it does occur, including 12 recommendations that call for the amendment of some of the Commonwealth legislation. The Committee notes that the ACTU welcomes the Government’s commitment to implement the recommendations of the inquiry in full. To this end, the Committee notes with interest the adoption, in November 2022, of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 which implements some of the 12 legislative recommendations of the Respect@Work Report. Among the changes, the Committee notes: (1) the introduction of a positive duty on employers and persons conducting a business or undertaking (PCBU) under the Sex Discrimination Act 1984 to take reasonable and proportionate measures to eliminate, as far as possible, sexual harassment, sex-based discrimination and harassment, hostile work environments, and related victimization (section 47B and C); and (2) the lower threshold to establish “harassment on the ground of sex” under the Sex Discrimination Act requiring that the relevant conduct be “demeaning” and no longer “seriously demeaning”. The Committee also notes that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 implements all remaining legislative amendments recommended by the Respect@Work Report, including: (1) introducing a vicarious liability of the employer for the sexual harassment by an employee, unless they took all reasonable steps to prevent sexual harassment; and (2) amending the Fair Work Act 2009 to set out a dispute resolution process in which an aggrieved person my apply to the Fair Work Commission to deal with the dispute and/or make a “stop sexual harassment order” (Part 8 Schedule 1). The Committee also notes the information provided on the various actions undertaken by the AHRC and the Sex Discrimination Commissioner to prevent and address sexual harassment in the workplace. It notes that, in 2021, Safe Work Australia published national guidance material to assist employers across Australia in preventing and responding to workplace sexual harassment as well as a tailored information sheet to assist small businesses in preventing workplace sexual harassment. The Committee takes note of the information provided by the Government according to which, between 2020 and 2021, the AHRC received 503 complaints under the Sex Discrimination Act, 252 of these complaints alleged sexual harassment (26 per cent). The largest number of these complaints occurred in the area of employment (67 per cent). 61 per cent of the total complaints lodged under the Sex Discrimination Act were successfully resolved through conciliation. The Committee requests the Government to provide information on the application in practice of the new legislative provisions regarding sexual harassment, including by providing information on the number, nature and outcome of any cases or complaints of sexual harassment dealt with by the labour inspectors, the Fair Work Commission, the courts or any other judicial or administrative competent authority, and the impact of these measures on the prevalence of sexual harassment in Australian workplaces. The Committee also asks the Government to continue to provide information on any additional activities undertaken by the Australian Human Rights Commission, the Sex Discrimination Commissioner and the Fair Work Commission to address sexual harassment.

Sexual orientation. The Committee notes with interest that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 introduces “gender identity” and “intersex status” as prohibited grounds of discrimination (Part 9 Schedule 1). It notes the Government’s indication that between 2020 and 2021, the AHRC received 504 complaints under the Sex Discrimination Act, of which 69 related to gender identity, 2 to intersex status and 30 to sexual orientation; 67 per cent of all complaints received over this period related to employment discrimination. The Committee also takes due note of the statistical data provided by the Government on court cases in the different states and territories. The Committee asks the Government to provide information on the application in practice of the Fair Work Act, as amended in 2022, including by continuing to provide information on the number, nature and outcome of any complaints or cases alleging discrimination on the grounds of gender identity, sexual orientation and intersex status in employment and occupation dealt with by the labour inspectors, the courts or any other judicial or administrative competent authority.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. Federal level. For a number of years, the Committee has been expressing concern regarding restrictions on the rights of indigenous peoples to land and property recognition and use. The Committee notes the Government’s indication that the Native Title Legislation Amendment Act 2021 (Amendment Act 2021) which amends the Native Title Act 1993 and the Corporations (Aboriginal and Torres Strait Islander) Act 2006, was passed in 2021, introducing a number of changes, including: (1) the possibility to make applications for compensation in relation to more areas where native title rights and interests have been impacted; (2) new functions of mediations to the National Native Title Tribunal; and (3) all court matters relating to the Corporations (Aboriginal and Torres Strait Islander) Act must be commenced in the Federal Court. The Government adds that extensive consultation was undertaken on the development of the Amendment Act. During its consultation, the Government received submissions from, and conducted meetings with, a wide range of stakeholders in the native title system, including native title representative bodies, registered native title bodies corporate and other Indigenous stakeholders. The Committee notes the Government’s statement that, as of 29 July 2022, approximately 80 per cent of native title determinations had been made by consent (566 determinations made in total). The Government states that native title has now been recognized over more than 42 per cent of Australia’s land mass and over more than 91,000 square kilometres of Australia’s seas. The Committee further notes the Government’s indication that the Indigenous Rangers Programme and Indigenous Protected Areas (IPA) Programme assists First Nations people to manage land in accordance with Traditional Owners’ objectives. In addition to supporting connection to the land and culture, the Government indicates that these programmes provide economic opportunities for First Nations peoples, and environmental outcomes to benefit all Australians. Finally, the Committee notes the Closing the Gap Strategy 2023, a formal commitment by federal, state and territory governments to achieve equality for Aboriginal and Torres Strait Islander peoples within 25 years, in which Outcome 15 is that Aboriginal and Torres Strait Islander people maintain a distinctive cultural, spiritual, physical and economic relationship with their land and waters. There are two targets under this outcome: (1) Target 15a: by 2030, a 15 per cent increase in Australia’s landmass subject to Aboriginal and Torres Strait Islander people’s legal rights or interests; and (2) Target 15b: by 2030, a 15 per cent increase in areas covered by Aboriginal and Torres Strait Islander people’s legal rights or interests in the sea. The Government indicates that, as of July 2023, the data shows that Target 15a is on track to be met. Despite the Government’s indication that substantial areas of sea claims are progressing and that it is expected that the data for target 15b would be on track in the next reporting period, the Committee notes from the 2023 Closing the Gap Report that Target 15b has improved but still not enough for the target to be met. The Committee requests the Government to pursue its efforts, in collaboration with indigenous peoples and other relevant stakeholders, to ensure that indigenous peoples have access to land and resources to allow them to engage in their traditional occupations and access employment without discrimination. It therefore asks the Government to continue to provide information on any further steps taken to this end, including by providing information on the implementation of the Indigenous Rangers’ Programme and IPA Programme, in as much as it relates to access to vocational training, to employment and to particular occupations, and terms and conditions of employment.

Article 2. Equality of opportunity and treatment of indigenous peoples. Constitutional recognition. The Committee previously noted the Government’s commitment to recognizing Aboriginal and Torres Strait Islander peoples in the Constitution. The Committee further notes that in a recent referendum the Australian people rejected the proposal to change the Constitution by inserting “recognition of the Aboriginal and Torres Strait Islander peoples as the First Peoples of Australia” and the establishment of “the Aboriginal and Torres Strait Islander Voice”. The Committee requests the Government to provide information regarding any actions taken in relation to these matters following the result of the referendum.

National policy and programmes for indigenous peoples. The Committee notes the Government’s indication that a new National Agreement on the Closing the Gap Strategy came into effect on 27 July 2020. It notes however, from the Closing the Gap Annual Report of 2023, that many of the targets set out are “not on track” to be met by 2031. For example, Target 4, which aims to increase the proportion of Aboriginal and Torres Strait Islander children assessed as developmentally on track in all five domains of the Australian Early Development Census to 55 per cent by 2031, is reported as “not on track” and has actually worsened from 35.2 per cent in 2018 (the baseline year) to 34.3 per cent in 2021. Also, for Targets 5, 6 and 7, which aim to increase the proportion of Aboriginal and Torres Strait Islander youth (15–24 years) who have completed secondary school and/or are in employment, high education or training, the report indicates that while improvements have been achieved, it is not enough for the targets to be met. The Committee takes due note that Target 8, which refers to the proportion of Aboriginal and Torres Strait Islander people between 25 to 64 years who are employed, shows a “good improvement” (from 51 per cent in 2016 (the baseline year) to 55.7 per cent in 2021) with the national target of 62 per cent on track to be met. The Committee notes with interest the Government’s indication that it has committed to replacing the Community Development Programme (CDP) with a new programme with real jobs, proper wages and decent conditions – developed in partnership with First Nations People. The Government adds that the new programme will increase economic opportunities and jobs in remote areas and give more control to communities to determine local projects that support economic development. The Committee notes, from the ACTU’s observations, that it welcomes the Government’s commitment to end the CDP, which it considered to be discriminatory against First Nations Peoples. The Committee further notes the Government’s indication that it is adapting its First Nations-specific employment investments to ensure it is fit for purpose, supports economic recovery and aligns with the change to mainstream employment services. The Government refers to the Indigenous Skills and Employment Program (ISEP), which is an investment that was announced in the 2021–22 Budget, and that is expected to contribute to closing the gap in employment by supporting pathways to meaningful and sustainable employment for First Nations People through flexible, locally informed investment.

State level. The Committee 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 to address discrimination. It notes that several states, such as Queensland, New South Wales and Western Australia, continue to implement affirmative actions to enhance the employment of Aboriginal and Torres Strait Islander peoples in the public sector in particular. Among these, the Committee takes note of the Queensland Women’s Strategy 2022-27, which includes a focus on elevating First Nations women as well as strengthening women’s overall economic security and includes a specific commitment to work to break down barriers to employment for First Nations women. In light of the persistent disadvantaged position of indigenous peoples in education and employment, the Committee asks the Government to pursue its efforts and to provide information on: (i) any assessment carried out on the impact of the different measures undertaken to enhance indigenous peoples’ access to the labour market, as well as on any corrective measures taken or envisaged as a result; (ii) any progress made in meeting the Closing the Gap targets, in particular concerning employment, education and vocational training; (iii) the implementation of the ISEP, including details of the contribution it has made to the Closing the Gap targets; and (iv) the policies and programmes implemented to address discrimination and promote equality of opportunity and treatment in employment and occupation for indigenous peoples at the federal, state and territory levels, as well as on their impact.

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