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

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

Previous comment.

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

Article 1(1)(a) of the Convention. State level. New South Wales. Pregnant women. The Committee notes the information provided by the Government in its report on the application in practice of the Justice Legislation Amendment Act 2018, and that, in the period between 2018 and 2022, the Anti-Discrimination NSW received 82 discrimination complaints on the grounds of pregnancy and breastfeeding. The Government also indicates that SafeWork NSW provides information and guidance for pregnant workers, including rights and responsibilities at work, and protections from discrimination due to pregnancy. The Committee takes due note of the information provided by the Government.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee notes the Government’s indication that the Disability Discrimination Commissioner launched the IncludeAbility project in 2021, a three-year project aimed at increasing the capacity of employers to successfully employ, retain and promote people with disability. The IncludeAbility Project focuses on four key components: (1) an Employer Network of executive leaders from some of Australia’s largest organisations and businesses; (2) an Ambassador Advisory Group, comprised of people with lived experience of disability; (3) a web portal hosting a range of employment and workplace resources to support employers, employees, and prospective employees with disability; and (4) the opportunity for Employer Network members to participate in innovative pilot employment programmes. The Committee takes note of the Government statement that, in 2021, the labour force participation rate for people with disability aged 15–64 years was at 53.4 per cent, compared to 84.1 per cent for people the same age without disability. The Committee further notes, from the observations of the ACTU, that there are ongoing proceedings in front of the Fair Work Commission (FWC) made by the ACTU and the Association for Employees with Disabilities Legal Centre. The ACTU and the Association for Employees with Disabilities Legal Centre contend that the Fair Work Act 2009 does not permit the FWC to set rates of pay for employees with a disability in a manner that discriminates against them for circumstances connected with their disability, other than their productive capacity. The ACTU explains that the Government disagrees with this position, and if the Commonwealth’s position is proved to be the legally correct view of the operation of the Fair Work Act 2009, there will be a need for corrective action to ensure the objectives of the Convention are realised.

State level. The Committee takes note of the data provided by the Government on the employment rate of persons with disabilities in certain states. It notes that in New South Wales (NSW), the estimated representation of government sector employees with disability in 2021 was 2.4 per cent. The Government adds that NSW workforce profile data for 2021 shows that people with a disability accepted job offers at a lower salary rate of 73.5 per cent compared to 86.9 per cent of people with no disability. In 2021, the remuneration commencement rate for people with a disability increased 8.4 per cent points, reducing the gap in commencement rate between people with disability and those with no disability to 0.4 per cent. In Victoria, in 2021, persons with disabilities represented an estimated 5.2 per cent overall of public sector employees, and 7.3 per cent of all employed Victorians aged 15–64 years. The Committee notes with interest that the Equal Opportunity Act 2010 was amended in 2021 to introduce a clear requirement to make reasonable adjustments in the workplace for contract workers with a disability. The Government indicates that the Victorian economic participation plan for people with disability 2018–20 sets a target employment participation rate across the Victorian Public Service of 6 per cent by 2020 and 12 per cent by 2025. The Committee further notes, that the data from the Western Australia Government Sector Workforce 2020–21 Report states that the representation of people with disability in the public sector workforce is as low as 1.5 per cent. The Government also indicates that, in South Australia, the Office of the Commissioner for Equal Opportunity 2020-21 Annual Report, revealed there were 46 complaints involving disability discrimination during that reporting period, equating to 25 per cent of all accepted complaints to the Office, with most complaints relating to people living with a disability trying to access goods and services or employment. The Committee asks the Government to continue to provide information on: (i) any measures taken at federal and state levels to promote equal opportunity and treatment for persons with disabilities in education, vocational training and employment, particularly with respect to conditions of work and wages; (ii) the results achieved by the IncludeAbility Project in reducing the prevalence of discrimination against persons with disabilities in employment; (iii) the decision upheld by the Fair Work Commission on the on-going proceedings relating to setting rates of pay for people with disabilities; and (iv) statistical data on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Age. The Committee refers to its previous comment and takes note of the Government’s indication that there has been no change since its previous report.

Articles 2 and 3. Equality of opportunity and treatment between men and women. Occupational segregation. The Committee notes the Government’s information on the various measures taken to reach gender equality in the workplace. Among others, the Government refers to a review of the Workplace Gender Equality Act 2012, undertaken in late 2021 to consider how progress on gender equality in workplaces could be accelerated and how employers’ reporting to the Workplace Gender Equality Agency (WGEA) could be streamlined. The Government states that it has committed to an ambitious gender equality agenda to promote equality of opportunity for women and men, including through: (1) the development of a National Strategy to Achieve Gender Equality; (2) the establishment of an independent Women’s Economic Security Taskforce; and 3) delivering Gender Responsive Budgeting. The Committee notes the organization, in September 2022, of an Australian Jobs and Skills Summit to investigate and report on issues such as preparing for the jobs of the future; the quality of work; and underemployment, women’s participation, job insecurity, long-term unemployment and stagnant wages. Ensuring women have equal opportunities and equal pay was a key focus of the Summit. The Committee also notes the information provided by the Government on the distribution of men and women in employment in different sectors and positions, in the private and public sectors. It notes that, as of June 2022, the percentage of women on Australian Government board positions was 50.2 per cent, a 5.7 percentage point increase since 2017. However, the Committee notes that women continue to be underrepresented in managerial positions (38.2 per cent of women in 2021), and in occupations traditionally considered for males, such as machinery operators and drivers (where women represented 11.8 per cent of the workforce in 2021). They also remain overrepresented in occupations traditionally considered for females, such as clerical and administrative workers (where they represented 73.3 per cent of the workforce). The Committee asks the Government to pursue its efforts and to continue to provide information on: (i) any legislative, policy or other measures taken to promote equality of treatment and opportunity between men and women in law and in practice; (ii) the results achieved by such measures, in particular in order to address vertical and horizontal occupational gender segregation, by enhancing women’s access to a wider range of jobs and to jobs at higher levels, including in sectors where women are less represented such as the armed forces for example; and (iii) the outcomes of the Australian Jobs and Skills Summit with respect to ensuring equal opportunity between men and women in employment and occupation. The Committee also asks the Government to continue to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, in both the public and private sectors.

The state level. The Committee welcomes the measures implemented by several states, such as in Queensland, New South Wales, Victoria, Western Australia and South Australia to take affirmative actions to promote the representation of women at senior leadership level, in particular in the public sector. It notes, in particular, the adoption of the Gender Equality Act 2020 in Victoria, which requires public sector organizations to take positive action towards promoting workplace gender equality and to consider and promote gender equality in their policies, programmes and services. The Act requires the development and implementation of a Gender Equality Action Plan (GEAP) every four years based on the results of a workplace gender audit covering seven key gender equality indicators. Victoria also launched the Women in Construction Strategy (2022), designed to increase women’s participation in the trades and semi-skilled ‘blue-collar’ work. It also notes that the Queensland Anti-Discrimination Act is currently under review by the Queensland Human Rights Commission. The Committee asks the Government to continue to provide information on the policies and programmes implemented to promote equality of opportunity and treatment between men and women in employment and occupation and address occupational gender segregation at state and territory levels, as well as on their impact.

New South Wales. The Committee previously noted that the Government Sector Employment Act 2013, No. 40, deleted 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. It further noted that the Act provides that employees in the Government sector should be recruited and promoted on merit, and that affirmative action measures may only 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 notes the Government’s indication that amendments will be made to ensure that paid parents leave provisions are gender neutral. Noting however that the Government does not address the issues previously raised, the Committee again asks the Government to indicate how discrimination is prohibited and equal opportunity in employment is ensured under the Anti-Discrimination Act, 1977, and to supply information on the application of the 2013 Act in practice, including any implementing regulations, as well as any decisions issued by tribunals or administrative bodies.

Tasmania. Gender Equality. The Committee previously noted the 2016 Government’s commitment to a target of 50 per cent of women’s representation across Government’s boards and committees by June 2020, which was supported by the 2015–20 Five Year Plan and the Tasmanian Women’s Plan 2013–18. It notes the Government’s indication that women’s representation on all Government boards and committees has increased from 40 per cent in April 2018 to 48.3 per cent in June 2021. The Committee also notes that, in 2021, the Tasmanian Government released the Leadership and Participation for Women Action Plan 2021–23 with the aim of improving women’s participation in decisions which affect their lives and communities; providing opportunities for skills development and employment pathways; facilitating leadership development; and promoting the recognition of women’s achievements. The Committee asks the Government to continue to provide information on the development, monitoring and implementation of legislation, policies and plans adopted at the state level to promote gender equality.

Discrimination on the grounds of race, colour, national extraction and religion. The Committee takes note of the various measures taken by the Government to address discrimination on the grounds of race, colour, national extraction and religion. In particular, the Committee notes that the AHRC is developing a National Anti-Racism Framework, which will be a long-term, central reference point to guide actions on anti-racism by government institutions, NGOs, business, educators, health professionals, police, other justice authorities, civil society and the community. It notes that the Race Discrimination Commissioner, along with the AHRC, work with government institutions, businesses, community partners, education providers, the media and workplaces to help individuals and organizations understand their rights and meet their legal responsibilities to combat racism and build social cohesion in Australia. The Committee also notes the Government’s information on the ‘Racism. It Stops With Me’ campaign, administered by the AHRC, relaunched in 2022, and which includes a Workplace Cultural Diversity Tool to support employers in improving their approach to cultural diversity and inclusion in the workplace. The campaign website includes information and resources including practical tips about taking anti-racist action in workplaces. The Committee further notes that the Fair Work Ombudsman (FWO) has developed multiple resources to ensure migrant workers understand their rights and know where they can get help if they have concerns, including: (1) a dedicated section of the FWO website for migrant workers with a range of professionally translated information, resources and videos that are tailored to their needs; (2) a free Translating and Interpreting Service available to anyone who has difficulty speaking or understanding English; and (3) proactive engagement activities to assist migrant workers to understand workplace rights and entitlements. The Committee asks the Government to continue to provide information on: (i) the proactive steps taken to prevent and address discrimination on the grounds of race, colour, national extraction, and religion, in particular by addressing bias and negative attitudes that may lead to discrimination and by promoting equality of opportunity and treatment in employment and occupation of migrant workers, while ensuring that they have access to effective protection and remedies; and (ii) the number, nature and outcome of cases or complaints of discrimination on the grounds of race, colour, national extraction or religion detected or dealt with by the labour inspectors, the courts or any other competent authority.

The state level. Following the launch of a “RecruitSmarter pilot”, in Victoria, to introduce a de-identification trial within selected organizations to address unconscious bias in the recruitment process, the Committee notes the Government’s indication that the key findings of this de-identification trial were as follows. When the trial is implemented: (1) applicants born overseas are 8 per cent more likely than before to be shortlisted for a job; (2) female job applicants are 8 per cent more likely to be shortlisted and hired; (3) applicants from suburbs of lower socioeconomic status are 9.4 per cent more likely to progress through the selection process and receive a job offer; and (4) the advantage men had over women in being shortlisted went down from 30 per cent to 6 per cent. The Government states that the report also found that training about unconscious biases improves staff intention and capacity to support diversity and inclusion in the workplace. The Committee asks the Government to provide information on any follow-up measures taken or envisaged, as a result of the assessment made of the introduction of a de-identification recruitment process, and if it envisaged for example to expand this trial to other organizations.

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

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.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 10 October 2018.

Articles 1 and 2 of the Convention. Legislation and policy. Federal level. Discrimination on the basis of sex. Sexual harassment. The Committee previously requested the Government to develop and implement a national sexual harassment prevention strategy. The Committee notes that the ACTU indicates that sexual harassment at the workplace is a significant issue as nearly 40 per cent of women reported having experienced sexual harassment in the past five years. The ACTU adds that studies show that incidence of sexual harassment has increased by nearly 3.5 per cent each year over the past five years. The Committee notes the Government’s indication, in its report, that on 20 June 2018, the Minister for Women and the Sex Discrimination Commissioner announced a national inquiry into sexual harassment in workplaces which will be undertaken by the Australian Human Rights Commission (AHRC) over 12 months and will report on systematic issues including the nature, prevalence and reporting of sexual harassment in workplaces, the drivers of workplace sexual harassment, the current legal framework with respect to sexual harassment and existing measures and good practice to address workplace sexual harassment. The Committee however notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at: (i) the impact of harassment and bullying in school environments on women and girls who are exposed to intersecting forms of discrimination, highlighting that one in ten women have been sexually harassed at university over the past two years; as well as (ii) the fact that 48 per cent of women have experienced sexual harassment at work and that fear of dismissal often prevents them from reporting such incidents (CEDAW/C/AUS/CO/8, 25 July 2018, paragraphs 41 and 47). It notes that, in its 2018 report, the UN Special Rapporteur on violence against women, its causes and consequences highlights that 20 per cent of the total number of complaints handled by the AHRC are primarily related to sexual harassment of women in employment (A/HRC/38/47/Add.1, 17 April 2018, paragraph 30). Recalling that sexual harassment is a serious form of sex discrimination, the Committee asks the Government to provide information on the proactive measures taken to address the high incidence of sexual harassment in workplaces, such as the elaboration and implementation of comprehensive national policy on the prevention of sexual harassment. It asks the Government to provide information on the results of the national inquiry into sexual harassment in workplaces undertaken by the Australian Human Rights Commission, the recommendations formulated, and the implementation of these recommendations. The Committee asks the Government to provide information on the additional activities undertaken by the Australian Human Rights Commission and the Sex Discrimination Commissioner to address sexual harassment, as well as on the number, nature and outcome of any cases or complaints of sexual harassment dealt with by the labour inspectors, the courts or any other judicial or administrative competent authority.

Sexual orientation. The Committee previously noted the amendment of the Sex Discrimination Act to prohibit discrimination on the grounds of gender identity, sexual orientation and intersex status in prescribed areas of public life, including employment and occupation. It notes the Government’s indication that during the period 2016–17 the AHRC received 465 complaints under the Sex Discrimination Act, of which 39 related to gender identity, seven to intersex status and 40 to sexual orientation; 78 per cent of all complaints received over this period related to employment discrimination. Referring to its previous comments concerning the amendment to the Anti-Discrimination Act 1998 in Tasmania, ensuring protection 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, inter alia, of sexual orientation, gender identity and intersex status, the Committee notes that from 2016 to 2018, the Tasmanian Anti-Discrimination Commissioner received three complaints alleging discrimination on the basis of gender identity, and eight complaints concerning sexual orientation. The Committee asks the Government to continue 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.

The state level. New South Wales. Pregnant women. The Committee notes with interest the Justice Legislation Amendment Act, 2018, amending the Anti-Discrimination Act by removing two exemptions to the general prohibition on discrimination on the ground of sex which allowed an employer not to offer a pregnant woman a job, or to dismiss a pregnant woman from her job, if the woman was pregnant at the time she applied for or was interviewed for the job. Welcoming this information, the Committee asks the Government to provide information on the application of the Justice Legislation Amendment Act, 2018 in practice, including on any activities undertaken to raise awareness of these new legislative provisions, in particular among women workers, as well as the procedures and remedies available.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee previously noted the adoption of several initiatives and affirmative action measures to promote the employment of persons with disabilities at the national and state levels, but noted the concerns expressed by ACTU regarding the manner in which the wage assessment tools used to determine minimum wages discriminate against persons with disabilities. The Committee notes that ACTU reiterates its concern about wage assessment tools used to determine minimum wages for employees with disabilities and in particular the Business Services Wage Assessment Tool (BSWAT) as it relies on a hybrid model of assessment measuring both competency as well as productivity. It notes the Government’s statement that, on 5 June 2015, the Fair Work Commission (FWC) removed the BSWAT from the Supported Employment Services Award 2010 (SES Award), requesting all Australian disability enterprises to transition to an alternative approved wage assessment tool under the SES Award. The Government adds that on 16 April 2018, the FWC found that, while supported employment has a valuable and socially significant role in providing employment to persons with disabilities, the current wage assessment tools do not meet the Modern Award Objective, so it proposed to: (i) phase out all the existing wage assessment tools; (ii) replace them with a new single prescribed method for the adjustment of the award wage rates for supported employees; and (iii) amend the classification structure of employees in the award. The Government adds that in March 2015, it requested the AHRC to conduct a national inquiry into employment discrimination against persons with disabilities. As a result, in May 2016, the inquiry found that: (i) the labour force participation rate for persons with disabilities was 53.4 per cent, a figure that has changed very little over the last 20 years; (ii) persons with disabilities are also more likely to be unemployed compared to those without disability (10.0 per cent compared with 5.3 per cent in 2016); and (iii) employment discrimination against people with disabilities is ongoing and systemic. As a result, the AHRC made recommendations aimed at reducing, inter alia, the prevalence of discrimination against persons with disabilities in employment. The Government indicates that consultations with several stakeholders were held in 2018 and further work is underway on a detailed proposal of policy options to inform a future model for supported employment. The Committee notes that the Australian Public Service Disability Employment Strategy for 2016–19 aims, inter alia, at expanding the range of employment opportunities for persons with disabilities and access to senior positions in the public sector. It notes that the AHRC undertakes regular awareness-raising activities and produces tools and resources on employment discrimination against persons with disabilities which are available online. The Committee however notes that, in its 2019 concluding observations, the UN Committee on the Rights of Persons with Disabilities (CRPD) was concerned at: (i) the lack of an effective legislative framework to protect persons with disabilities from systemic, intersectional and multiple forms of discrimination, especially at the Commonwealth level; (ii) the significant increase in students with disabilities experiencing a segregated education, seclusion, and isolation; (iii) the ongoing segregation of persons with disabilities employed through “Australian Disability Enterprises” and the fact that such persons receive a subminimum wage; and (iv) the low labour force participation of persons with disabilities, particularly women and Aboriginal and Torres Strait Islander persons (CRPD/C/AUS/CO/2-3, 15 October 2019, paragraphs 9, 45 and 49).

The Committee notes that several initiatives were implemented at the state level to promote vocational training and employment of persons with disabilities, including in Victoria in the framework of the Public Sector Disability Employment Action Plan for 2018–20 which commits to a 6 per cent disability employment target across all Victorian Government departments by 2020, increasing to 12 per cent by 2025. It further notes that in South Australia, the Disability Employment Community of Practice was established as a network of employers who act collectively and individually to increase and sustain employment of people with disabilities.

The Committee asks the Government to continue to provide information on any measures taken at federal and state levels to promote equal opportunity and treatment for persons with disabilities in education, vocational training and employment, particularly with regard to conditions of work and wages. It asks the Government to provide information on any follow-up actions undertaken following the recommendations made by the AHRC to reduce the prevalence of discrimination against persons with disabilities in employment, including within the framework of the elaboration of a future model for supported employment at federal level. The Committee asks the Government to provide statistical information on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Age. The Committee previously noted that the AHRC was conducting a national inquiry into employment discrimination against older workers, which would explore whether Commonwealth laws should be amended, or what other actions should be taken. The Committee notes the Government’s indication that, as a result of the national inquiry, it was found that (i) people aged 55 years and over make up roughly a quarter of the population, but only 16 per cent of the total workforce; and (ii) 27 per cent of people over the age of 50 had recently experienced discrimination in the workplace. The Government states that following the inquiry, in May 2016, the AHRC made recommendations aimed at reducing, inter alia, the prevalence of age discrimination in employment against older workers. The Government adds that, as announced in the 2018–19 Budget, the Government will work with the Age Discrimination Commissioner and industry to establish a collaborative partnership on mature age employment. The Committee notes that such partnership aims at raising awareness of age discrimination among employers, promoting the benefits of employing older workers, and helping employers to manage an age-diverse workforce. Welcoming this information, the Committee asks the Government to continue to provide information on any measures introduced or activities undertaken or envisaged to prevent and address age discrimination in employment and occupation, as well as on their impact.

Articles 2 and 3. Equality of opportunity and treatment between men and women. Occupational segregation. The Committee previously noted from the Australia’s Gender Equality Scorecard for 2015–16 that women in leadership positions, including chief executive officers (CEOs) and key management personnel, scored low at 16.3 and 28.5 per cent respectively, and asked 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. The Committee notes the Government’s indication that the Australia’s Gender Equality Scorecard for 2016–17 shows that the gender balance in leadership is improving as the representation of women across all managerial categories has increased since 2013–14, with the percentage of CEOs who are women now at 16.5 per cent, and the percentage of key management positions held by women now at 29.7 per cent. The Committee notes the Government’s commitment to achieving a target of women holding 50 per cent of Government board positions overall. The Government states that, as of 31 December 2017, women held 44.5 per cent of Australian Government board positions, a 1.8 percentage point increase since June 2017. The Committee notes that, following a report released in June 2017 by the Sex Discrimination Commission, recommendations were issued, calling for sweeping reforms to the recruitment and retention of women in the armed forces, as well as their enhanced access to leadership positions, and accepted by the Chief of the Defence Force. The Government adds that under the Women’s Leadership Development Program (WLDP), funding is focused on improving gender equality and providing support for women’s economic empowerment, safety and leadership, in order to contribute to increasing diversity on boards and in management. The Government further indicates that it is committed to supporting women’s participation in high-earning careers through a 13 million Australian dollars (AUD) investment to enhance women’s representation in science, technology, engineering and mathematics (STEM), as well as through entrepreneurship initiatives under the National Innovation and Science Agenda. The Committee, however, notes that ACTU indicates that gender inequality in the workplace remains a significant problem. While recognizing some improvements in gender ratios for senior positions, ACTU expresses concern at the extremely gender segregated industries and occupations. The Committee notes that several UN Treaty Bodies also expressed concern about (i) the industrial and occupational segregation; (ii) the low proportion of girls (less than one in 20, compared with one in five boys) who envisage a career in the field of STEM, in which jobs are higher-paid and in high demand; (iii) the lack of obligations on employers regarding flexible working arrangements, which contributes to the overrepresentation of women in part-time work and lower-paid sectors; as well as (iv) the lack of incentives for the reconciliation of work and family responsibilities (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 43; and E/C.12/AUS/CO/5, 11 July 2017, paragraph 21). The Committee asks the Government to continue to provide information on any legislative, policy or other measures taken to promote equality of treatment and opportunity between men and women in law and in practice, and on the results achieved by such measures, in particular in order to address vertical and horizontal occupational gender segregation, by enhancing women’s access to a wider range of jobs and to jobs at higher levels, in particular in sectors where women are less represented such as the armed forces. It asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, in both the public and private sectors.

The state level. The Committee welcomes the measures implemented by several states, such as in Queensland, New South Wales, Victoria, and Western Australia, to take affirmative actions to promote the representation of women at senior leadership level, in particular in the public sector. It further notes that South Australia and the Australian Capital Territory introduced flexible working arrangements for workers in order to better reconcile work and family responsibilities. The Committee asks the Government to continue to provide information on the policies and programmes implemented to promote equality of opportunity and treatment between men and women in employment and occupation and address occupational gender segregation at state and territory levels, as well as on their impact.

New South Wales. The Committee previously noted that the Government Sector Employment Act 2013, No. 40, deleted 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. It further noted 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 notes that the Government refers to the Sector Employment Rules 2014, implementing the Act of 2013, but observes that it does not provide any new information concerning the issue previously raised. The Committee again 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, as well as any decisions issued by tribunals or administrative bodies.

Tasmania. Gender Equality. The Committee previously noted the 2016 Government’s commitment to a target of 50 per cent of women’s representation across Government’s boards and committees by June 2020, which was supported by the 2015–20 Five Year Plan and the Tasmanian Women’s Plan 2013–18. It notes the Government’s indication that women’s representation on all Government boards and committees has increased from 33 per cent in July 2015 to 40 per cent in April 2018, and that up to 52 per cent of Government business enterprise directors are women as well as 44 per cent of state-owned company directors. The Committee notes that a new Tasmanian Women’s Strategy covers the period 2018–21. The Committee asks the Government to continue to provide information on the development, monitoring and implementation of legislation, policies and plans adopted at the state level to promote gender equality.

Discrimination on the grounds of race, colour, national extraction and religion. The Committee previously requested the Government to provide information on any measures introduced to give effect to the recommendation made by the UN Special Rapporteur on contemporary forms of racism, racial discrimination and xenophobia concerning the possibility of employers undertaking “blind” recruitment as a result of significant likelihood that indigenous Australians, persons of African descent, Asians and Muslims would experience discrimination otherwise. It notes that the Government refers to the Racial Discrimination Act 1975 which prohibits discrimination in employment, in particular in recruitment, on the grounds of race, colour, national extraction and ethnic origin, as well as to a racial discrimination case brought by the Fair Work Ombudsman in which financial penalties were imposed on both the employer and employer operators. The Government adds that, since 2017, specific practices were developed to reach vulnerable and migrant workers and enable them to better understand their rights, such as the creation of an anonymous online reporting tool. These measures have helped to raise awareness among workers on their workplace rights and have made it easier to report alleged breaches. While welcoming this information, the Committee notes that several UN Treaty Bodies and Special Rapporteurs reiterated their concerns about increasing xenophobic hate speech leading to the creation of a negative perception of migrants, as well as reports of discrimination on the basis of ethnic, racial, cultural or religious background and racial profiling, targeting in particular Muslims and persons of African descent. It notes that further concerns were expressed about: (i) the working conditions of migrant workers, particularly those on temporary visas (approximately 1.8 million workers), who receive lower wages and work for longer hours, especially in the construction, agricultural and hospitality industries; as well as (ii) the fact that, owing to heavy reliance on their employers, combined with a lack of knowledge about their rights and entitlements and fear of dismissal, many of those workers refrain from seeking redress, which contributes to increased exploitation by employers (CERD/C/AUS/CO/18-20, 26 December 2017, paragraph 34; CCPR/C/AUS/CO/6, 1 December 2017, paragraph 19; E/C.12/AUS/CO/5, 11 July 2017, paragraph 27; A/HRC/35/41/Add.2, 9 June 2017, paragraph 56; and A/HRC/35/25/Add.3, 24 April 2017, paragraph 95). The Committee asks the Government to provide information on the proactive steps taken to prevent and address discrimination on the grounds of race, colour, national extraction, and religion, in particular by addressing bias and negative attitudes that may lead to discrimination and by promoting equality of opportunity and treatment in employment and occupation of migrant workers, while ensuring that they have access to effective protection and remedies. It asks the Government to provide information on the number, nature and outcome of cases or complaints of discrimination on the grounds of race, colour, national extraction or religion detected or dealt with by the labour inspectors, the courts or any other competent authority.

General observation of 2018. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

The state level. The Committee notes with interest that Victoria has launched a “RecruitSmarter pilot” to introduce a de-identification trial within selected organizations to address unconscious bias in the recruitment process. During the de-identification trial, personal information that could potentially be used to identify an applicant is removed, such as religion, gender, sexual orientation, age, contact details and details of their academic institution. The Victorian Government adds that the pilot results will be analysed shortly and will form the basis for recommendations for best practice for the sectors involved. The Committee asks the Government to provide information on the results of the assessment made of the introduction of a de-identification recruitment process, as well as on any recommendations made or follow-up measures taken or envisaged.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 10 October 2018.

Articles 1 and 2 of the Convention. Legislative developments and enforcement. Gender equality. Federal level. In its previous comments, the Committee asked the Government to report on the amendments to the Fair Work Act 2009, the adoption of comprehensive anti-discrimination legislation at the federal level and on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) of 2015. The Committee notes the Government’s repeated indication in its report that the proposal to consolidate the five Commonwealth anti-discrimination Acts into a single comprehensive federal law was withdrawn and does not form part of the current Government’s policy. The Government adds that equality and non-discrimination continue to be protected and promoted through legislative, policy and programme measures, including legislative anti-discrimination protections at the Commonwealth, state and territory levels. The Committee notes the Government’s indication that the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) requires reporting from relevant employers on additional data including appointments, promotions and resignations, as well as the proportion of employees ceasing employment before returning to work from parental leave. Data on flexible working arrangements, as well as gender-specific access to parental leave and support for caring, continue to be collected. Referring to its 2019 observation on the application of the Equal Remuneration Convention, 1951 (No. 100), the Committee notes the Government’s indication that reporting provided for under the 2013 Instrument seems to have had a positive impact in practice. The Workplace Gender Equality Agency’s (WGEA) most recent 2016–17 dataset shows that the proportion of organizations with specific pay equity objectives in their remuneration policy and/or strategy has doubled over the last three reporting periods. The Committee asks the Government to report any new legislative developments or amendments made to the federal anti-discrimination laws, including the Fair Work Act 2009, as well as their application in practice. It asks the Government to provide information on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) and their impact in achieving effective equality of opportunity and treatment.

Article 1(1)(a). Discrimination based on religion. State level. Victoria. The Committee previously raised concerns about sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010, which provides exemptions to the prohibition on discrimination in the case of religious bodies and schools that conform to the doctrines, beliefs or principles of a religion, or when it is reasonable to avoid injury to the religious sensitivities of adherents to the religion. The Committee noted the Victorian Government’s commitment to amending the religious exemptions in the Equal Opportunity Act 2010. The Committee further notes that the Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 to that end. This will reinstate the “inherent requirement” test for employment by a religious body or religious school, which had previously been removed. The Committee, however, notes that the Bill passed the Legislative Assembly in September 2016, but was defeated in the Legislative Council in December 2016 and that as a result the “inherent requirement” test for employment by a religious body or religious school has not been reintroduced. The Committee asks the Government to indicate how it is ensured that sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010 do not, in practice, hinder the enjoyment of equality of opportunity and treatment in respect of employment. The Committee also asks the Government to continue to provide information on any amendments envisaged to the Equal Opportunity Act 2010 with a view to bringing the provisions regarding religious exemptions into conformity with the Convention by establishing an “inherent requirement” test.

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. It previously noted that the Council of Australian Governments (COAG) conducted an investigation into indigenous land administration and use and, in its December 2015 final report, made six key recommendations to take forward this agenda, including many proposed amendments to the Native Title Act 1993. The Committee notes the Government’s indication that it is developing a package of native title reforms to improve the efficiency and effectiveness of the native title system for all parties, including by: focusing on improving claims resolution; coming to agreements around the use of native title land; and introducing measures to promote the autonomy of native title groups to make decisions about their land and to resolve internal disputes. The Government indicates that, as of November 2017, approximately 79 per cent of native title determinations had been made by consent (406 determinations made in total). The Government adds that a paper seeking stakeholders’ views on options for reform was released on 29 November 2017 and that feedback from stakeholders will inform the development of a draft Native Title Amendment Bill. The Committee however notes that several United Nations (UN) Treaty Bodies remain concerned about: (i) the high standard of proof required to demonstrate an uninterrupted connection to the area being claimed, and a continued practice of their traditional laws and customs; and (ii) the extreme difficulties in obtaining compensation under the current native title scheme for those people who had their native title extinguished. The Special Rapporteur on the rights of indigenous peoples expressed further concerns at the complex system, with multiple and overlapping legal regimes applicable to native title claims and land rights at the federal, state and territory levels (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 51; CERD/C/AUS/CO/18-20, 26 December 2017, paragraph 21; CCPR/C/AUS/CO/6, 1 December 2017, paragraph 51; A/HRC/36/46/Add.2, 8 August 2017, paragraph 99; and E/C.12/AUS/CO/5, 11 July 2017, paragraph 15). The Committee asks the Government to provide specific information on any progress made in the review and adoption of the draft Native Title Amendment Bill, in collaboration with indigenous peoples and other relevant stakeholders. It asks the Government to provide information on any other steps taken 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.

Article 2. Equality of opportunity and treatment of indigenous peoples. Constitutional recognition. The Committee recalls the steps undertaken to examine, raise awareness and build support for the constitutional recognition of Aboriginal and Torres Strait Islander peoples, including the adoption of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013. It previously noted that while the Referendum Council, established to give advice on Aboriginal and Torres Straight Island peoples, called for constitutional recognition of indigenous peoples, the Government had rejected this proposal. The Committee notes the Government’s statement that it remains committed to recognizing Aboriginal and Torres Strait Islander peoples in the Constitution, but does not believe that the Referendum Council’s proposal to provide for a national indigenous representative assembly to constitute a ‘Voice to Parliament’ is either desirable or capable of winning acceptance in a referendum. The Government indicates that the Commonwealth Parliament’s Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples was appointed in March 2018 and will consider the recommendations of the Referendum Council (2017), the Uluru Statement from the Heart (2017), the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Expert Panel on Constitutional Recognition of Indigenous Australians (2012). The Committee asks the Government to continue providing information on the status of the process of specifically recognizing Aboriginal and Torres Strait Islander peoples in the Constitution.

National policy and programmes for indigenous peoples. The Committee previously noted the “Closing the Gap Strategy”, which is a formal commitment by federal, state and territory governments to achieve equality for Aboriginal and Torres Strait Islander peoples within 25 years. However, it noted from the 2017 assessment report that the employment target was not being met, and that while there had been an increase in the employment rate of indigenous peoples since 1994, there has been a decline since 2008. The Committee notes the Government’s indication that it is on track to meet three out of seven of the current “Closing the Gap” targets and that all Australian governments are working together, in consultation with Aboriginal and Torres Strait Islander peoples, to update the “Closing the Gap” targets. The Government adds that, between November 2017 and April 2018, “Closing the Gap Refresh” hosted a special gathering of indigenous representatives, conducted 18 national round tables and held a series of workshops, presentations and meetings. Over 1,000 stakeholders have participated in these consultations. The Government indicates that a public submission process closed on 30 April 2018 with over 170 submissions received and that, based on these consultations, Commonwealth, state and territory officials worked with indigenous academics, experts and practitioners to draft potential targets. The Committee notes that the COAG will consider “Closing the Gap” targets at its next meeting.

Concerning indigenous employment initiatives, the Committee notes the reference made by the Government to several specific initiatives aimed, inter alia, at enhancing indigenous people’s access to employment and vocational training, such as the Employment Parity Initiative (EPI) which encourages large employers to enter into a parity partnership with the Government to increase the proportion of indigenous employment, as well as to use indigenous businesses in their supply chains. The Government adds that specific affirmative measures have been implemented to expand the range of indigenous employment opportunities in the public sector, including in the framework of the Australian Public Service Commissioner’s Directions 2016 and the Commonwealth Aboriginal and Torres Strait Islander Employment Strategy. While welcoming this information, the Committee notes that the ACTU remains concerned that work-related discrimination against indigenous peoples is not being properly addressed by the current governmental scheme. The ACTU also highlights that, according to a recent survey, 9 per cent of Australians aged 25–44 would not hire an indigenous person for a job and 22 per cent do not see this as an act of discrimination. The ACTU expresses specific concern about the Community Development Programme (CDP), which aggressively targets indigenous people, who represent 80 per cent of CDP participants. The ACTU indicates that, according to the Australia Institute, the programme is not generating employment, as less than 20 per cent of CDP participants are supported into a job and less than 10 per cent stay in that job for six months. The trade union further expresses concern at the fact that CDP participants are typically required to work 25 hours a week for 280 Australian dollars (AUD) or AUD11.20 per hour, while the hourly minimum wage was AUD18.93 in 2018. The ACTU highlights that recipients receive even less if penalties for non-compliance are incurred, which is a common occurrence, and asks the Government to end this programme. The Committee notes that several UN Treaty Bodies express further concern at: (i) the low level of implementation of the “Closing the Gap” targets; (ii) the low level of school attainment and high drop-out rates at all school levels; as well as (iii) the high unemployment rate among indigenous peoples (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 51; A/HRC/38/47/Add.1, 17 April 2018, paragraph 47; CERD/C/AUS/CO/18-20, 26 December 2017, paragraphs 17 and 23; A/HRC/36/46/Add.2, 8 August 2017, paragraphs 11, 46, 54 and 57; E/C.12/AUS/CO/5, 11 July 2017, paragraphs 15 and 51; and A/HRC/35/41/Add.2, 9 June 2017, paragraphs 40, 48 and 51).

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. The Committee notes that several states, such as Queensland, New South Wales, Victoria and Western Australia, are implementing affirmative actions to enhance the employment of Aboriginal and Torres Strait Islander peoples in the public sector, in particular in senior positions. It further notes that, within the framework of Queensland’s Annual Vocational Education and Training (VET) Investment Plan, several programmes have been implemented to enhance access to vocational education and training for indigenous people. The Committee notes the release in 2017 of the “Tharamba Bugheen” Aboriginal Business Strategy 2017–21 in Victoria, which aims to strengthen the entrepreneurial culture and to advance the economic position of aboriginal Victorians, as well as improving the visibility and networks of aboriginal businesses.

In light of the failure to meet the employment targets and the persistent disadvantaged position of indigenous peoples in education and employment, the Committee asks the Government to pursue its efforts and provide information on 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 as a result, in particular to address the concerns expressed regarding the Community Development Programme. It asks the Government to provide information on any revision made of the “Closing the Gap Strategy” targets, in collaboration with indigenous peoples and other relevant stakeholders, as well as on any progress made in meeting these targets, in particular concerning employment. The Committee asks the Government to continue providing detailed information on 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.

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

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.

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 22 September 2015.

Articles 1 and 2 of the Convention. Legislative developments and enforcement. Gender equality. Federal. The Committee notes that in its observations the ACTU emphasizes the importance of maintaining coherent and effective legislative provisions with vigorous monitoring mechanisms in light of the findings of widespread discrimination in practice, in particular related to pregnancy and parental leave, in the national review undertaken by the Sex Discrimination Commissioner, on behalf of the Australian Human Rights Commission (AHRC). The ACTU points out that the adverse action provisions of the Fair Work Act 2009 are in need of strengthening and that they apply only to the extent the adverse treatment is a breach of the relevant State anti-discrimination law and therefore are subject to State-based inconsistencies and onerous burden of proof requirements. The Committee notes the Government’s indication that the proposal to consolidate the five Commonwealth anti-discrimination Acts into a single comprehensive federal law was withdrawn and does not form a part of the current Government policy. Thus, the provisions of the Fair Work Act 2009 (sections 351 and 361) thus continue to be limited (in a way reflecting State-based inconsistencies) (as indicated above). The Government reports that amendments have been made to the Fair Work Act 2009 through the Fair Work Amendment Act 2012, the Fair Work Amendment Act 2013 and the Fair Work Amendment Regulation 2013 (No. 2). The Committee notes that many of these amendments respond to the recommendations made by the Review Panel of the Fair Work Act 2009 concerning family friendly provisions which the Committee addresses in its observation under the Workers with Family Responsibilities Convention, 1981 (No. 156). The Committee also refers to its previous observation under the Equal Remuneration Convention, 1951 (No. 100), where it noted the amendments to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) which are aimed at streamlining workplace gender equality reporting requirements from the 2015–16 reporting period onwards while still meeting the gender policy objectives of the legislation. According to the ACTU, in addition to reducing reporting on remuneration, information relating to the number of applications and interviews conducted and the number of requests and approval of leave is no longer collected. The Committee asks the Government to continue to report on amendments made to the Fair Work Act 2009, its application in practice particularly related to any findings of discrimination. The Government is also asked to report on the application in practice of the federal anti-discrimination laws. The Committee also asks the Government to report on any developments relating to the adoption of comprehensive anti-discrimination legislation at the federal level. Further to its previous observation under Convention No. 100, the Committee asks the Government to provide information on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) and their impact in light of the requirements of this Convention, in particular, that effective equality of opportunity and treatment be ensured.

States. Victoria. Discrimination based on religion. The Committee recalls from its previous comment the concern raised over sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010, which provides exemptions to the prohibition of discrimination for religious bodies and schools that conform to the doctrines, beliefs or principles of a religion, or when it is reasonable to avoid injury to the religious sensitivities of adherents to the religion. The Committee notes the Government’s reply that the Victorian Government is committed to amending the religious exemptions in the Equal Opportunity Act 2010 to reinstate an “inherent requirements” test for employment by a religious body or religious school. The Committee asks the Government to provide information on any amendments to the Equal Opportunity Act 2010 with a view to bringing the provisions regarding religious exemptions into conformity with the Convention by establishing an “inherent requirements” test.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. Federal. The Committee recalls that for a number of years it has been raising issues in its observations related to restrictions on the rights of indigenous peoples to land and property recognition and use. The Committee notes from the Government’s report that the Council of Australian Governments (COAG) announced in 2014 that it would conduct an urgent investigation into indigenous land administration and use, to enable traditional owners to develop their land and to provide jobs and economic advancement for indigenous peoples, and that an Expert Indigenous Working Group was established in 2015 to provide guidance to the investigation, including through leadership on consultations and engagement with indigenous stakeholders. The Committee notes that, on 11 December 2015, the COAG published its report on its investigation into indigenous land administration. The investigation identified that indigenous land can and does support economic development and that the land systems are in a period of transition from a focus on recognition of rights to the use of rights for economic development. The report identifies five key areas where governments should focus their efforts: gaining efficiencies and improving effectiveness in the process of recognizing rights; supporting bankable interests in land; improving the process for doing business on indigenous land and land subject to native title; investing in the building blocks of land administration; and building capable and accountable land holding and representative bodies. The report makes six key recommendations to take forward this agenda, including many proposed amendments to the Native Title Act 1993. The Committee also notes that the AHRC facilitated an indigenous leaders’ round table on property rights, in May 2015, in Broome to better enable economic development within the indigenous estate. The Committee notes that the National Anti-Racism Strategy includes a nationwide public awareness campaign against racism and the promotion of anti-racism initiatives including a training tool on systematic racism against Aboriginal and Torres Strait Islander peoples and a Workplace Cultural Diversity Tool. Recalling that the Racial Discrimination Act applies to discrimination against indigenous peoples in employment and occupation, the Committee notes the Government’s indication that it is unaware of any significant indigenous employment discrimination cases brought under the Act. The Committee places importance on the new emphasis on the use of indigenous rights in land for the promotion of economic development including employment and occupational opportunities of indigenous peoples. The Committee asks the Government to provide specific information on the follow-up implementation to the COAG Report recommendations and the Broome consultations and any other steps taken to ensure that indigenous people have access to land and resources to allow them to engage in their traditional occupations and to access employment without discrimination. It also asks the Government to provide information on the impact of the measures introduced to implement the National Anti-Racism Strategy and the Racial Discrimination Act, and to monitor any related cases of discrimination submitted by members of indigenous peoples.

Equality of opportunity and treatment of indigenous peoples. Constitutional recognition. The Committee recalls the steps undertaken to examine, raise awareness and build support for the constitutional recognition of Aboriginal and Torres Strait Islander peoples, including the adoption of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013. It further notes that the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples tabled its final report which recommended that a referendum on constitutional recognition should be held when it has the greatest chance of success, without specifying any time frame. The Committee notes that a Referendum Council was established to give advice on Aboriginal and Torres Straight Island Peoples, which issued a final report on 30 June 2017. It notes the “Uluru Statement from the Heart”, adopted at the National Constitutional Convention 2017, by the Aboriginal and Torres Straight Island Peoples calling for a “First Nations Voice”, and the Referendum Council’s call to amend the Constitution to provide for a national indigenous representative assembly to constitute a “Voice to Parliament”. The Committee notes, however, that the Government rejected the Referendum Council’s call for constitutional recognition. The Committee asks the Government to continue to provide information on the status of the process to recognize specifically Aboriginal and Torres Strait Islander peoples in the Constitution.

National policy and programmes for indigenous peoples. The Committee notes the “Closing the Gap Strategy” which is a formal commitment by federal, state and territory governments to achieve equality for Aboriginal and Torres Strait Islander peoples within 25 years. The COAG has set measureable targets to monitor improvements in the strategy which include halving the gap in employment outcomes between indigenous and non-indigenous persons by 2018. The Committee notes from the Closing the Gap Prime Minister’s Report of 2017 that the employment target is not being met, and that while there has been an increase in the employment rate of indigenous peoples since 1994, there has been a decline since 2008. In 2014–15 only 35 per cent of indigenous peoples of working age in very remote areas were employed compared to 57.5 per cent of those living in major cities. To improve progress, the strategy calls for employment programmes to continue to link indigenous Australians with employment targets across the public sector and large infrastructure projects, and to help build the skills required for sustainable employment. In this regard the Committee notes that the Indigenous Procurement Policy has awarded contracts to 493 indigenous businesses. It also notes that under the Indigenous Advancement Strategy, the Government allocated 4.9 billion Australian dollars in 2015–16 to fund and deliver a range of programmes aimed at jobs, land and economic development. It also notes the new agreement on Northern Territory Remote Aboriginal Investment on getting children to school, adults into work and making communities safer, and the new community development programme which aims to ensure employment services are tailored to the unique labour markets and economic conditions in remote Australia.

States. 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. The Committee notes the detailed information in the Social Justice and Native Title Report 2016, on the stolen wage reparations programmes undertaken in Queensland, New South Wales (NSW) and Western Australia to establish inquiries and to provide trusts and claims procedures for indigenous peoples whose economic participation and wages have been restricted in those jurisdictions regarding Queensland, the Committee notes the adoption of the Multicultural Recognition Act No. 1 of 2016 which requires the preparation of a multicultural policy and a multicultural action plan to implement the policy. It also notes that, in 2015, the NSW Public Service Commission launched the NSW Public Sector Aboriginal Employment Strategy 2014–17 to increase the Aboriginal workforce across the NSW public sector. In Western Australia, the Aboriginal Employment Strategy has been developed by the Public Service Commission to attract Aboriginal people to public sector training and employment. Further in South Australia, the Strategic Plan provides a set of targets addressing discrimination against indigenous peoples including in employment and occupation; and in Tasmania, the minister in charge of the state service has issued a directive regarding the employment of Aboriginal and Torre Strait Islanders.

Noting that despite the numerous measures and initiatives, the indigenous peoples continue to be disadvantaged and that employment targets are not met, the Committee asks the Government to continue to reinforce its efforts and to provide information on any evaluations or reviews aimed at assessing and improving the impact of these measures and initiatives on employment and occupation outcomes. It also asks the Government to continue to provide detailed information on the policies and programmes developed and measures adopted to address discrimination and to promote equality of opportunity and treatment in employment and occupation for indigenous peoples at the federal, state and territory levels and their impact, including with regard to the “Closing the Gap” targets.

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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1(1)(a) of the Convention. Sexual harassment. In its previous comments, the Committee asked the Government to provide 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. The Committee notes that pursuant to section 13 of the Workplace Gender Equality Act of 2012, employers are required to report relating to gender equality indicators, including arrangements for dealing with sex-based harassment of employees in the workplace. The Committee also notes the Government’s indication that the Equal Opportunity in the Workplace Agency’s accreditation system for employer of choice for women also requires meeting of standards concerning sexual harassment. The Committee asks the Government to provide information on the practical application of the employers’ reporting on gender equality indicators concerning sexual harassment and on any other measures taken to prevent and address sexual harassment in employment and occupation.

Article 1(1)(b). Discrimination based on age. The Committee notes the Government’s indication that in May 2012, the Government implemented a package of measures including an allocation of 10 million Australian dollars (AUD) for a new AUD1,000 jobs bonus for employers who recruit and retain a mature age jobseeker for more than three months, and AUD2.1 million over four years for the Age Discrimination Commissioner to address negative age stereotyping in the media. The Committee also notes the Government’s indication that the Age Discrimination Commissioner works with stakeholders to tackle the attitudes and stereotypes that can contribute to age discrimination in the workplace, including by making speeches, publishing articles, and submitting reviews and legislation to the Government, as well as advocating for the rights of people who experience age discrimination. The Committee further notes the measures taken by the States and the territories, including the following:

• -Queensland, the priority areas of the “Positively Ageless strategy” that include promoting workplace participation;
• -South Australia, the targets of the Strategic Plan that include increasing the proportion of the participation of older people in the workforce by 10 percentage points by 2020. The “Age Matters” project aims at promoting awareness of the benefits of utilization of mature-aged employees;
• -Australian Capital Territory, the Human Rights Commission undertook activities including responding to complaints and enquiries on age discrimination, in line with the Strategic Plan for Positive Aging 2010–14.

The Committee asks the Government to continue to provide information on the specific measures aimed at addressing age discrimination in employment and occupation. Please also continue to provide information on the various initiatives being undertaken to address age discrimination, as well as the results achieved, with respect to the other States and the territories.

Article 2. National policy. The Committee welcomes the adoption of the National Human Rights Action Plan in December 2012, in which priority areas include workers’ rights (protections from discriminatory and unfair treatment in the workplace), self-determination and consultation for aboriginal and Torres Strait Islander peoples, and freedom from discrimination on the grounds of race, sex, age and disability. The Committee asks the Government to provide information on the specific measures taken or envisaged under the National Human Rights Action Plan, with a view to promoting equality of opportunity and treatment with respect to employment and occupation, and the results achieved. It also asks the Government to indicate the measures taken or envisaged, including in the context of the National Human Rights Action Plan, to eliminate 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 recalls 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. It also recalls 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 parental leave. The Committee notes the Government’s indication that in 2012, pilot surveys were conducted by Fair Work Australia in this regard, and recommendations were made by the Fair Work Act Review Panel. The recommendations include requiring workers and employers to hold a meeting to discuss a request for flexible working arrangements and for extensions of unpaid parental leave. The Committee also notes the Government’s indication that following the commitment to having at least 40 per cent women and 40 per cent men on Australian Government Boards by 2015, women’s representation on Australian Government Boards was 35.3 per cent according to a report released in April 2011, tracking towards its target. With regard to migrant, refugee and minority women, the Committee notes the Government’s indication that the Department of Education, Employment and Workplace Relations, Fair Work Australia, and the Department of Immigration and Citizenship are working on information packages, including releasing leaflets, to ensure temporary visa holders are more informed of their workplace rights and protections. The Committee asks the Government to provide information on any follow-up measures taken or envisaged to the recommendations made by the Review Panel concerning requests for flexible working arrangements and requests for extensions of unpaid parental leave, 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. The Committee also asks the Government to continue to provide information on the impact of the initiatives to increase women’s participation in decision-making roles and in non-traditional jobs, at the federal and state levels. Please continue 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 Government’s indication that in Victoria, the Disability Advisory Service established in 2009 has continued to address the low representation of persons with disabilities employed in the public service. 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. With regard to sections 153 and 195 of the Fair Work Act, the Committee notes the Government’s indication that it would be inappropriate to impose a civil penalty for discriminatory terms in a modern award or in an enterprise agreement, and that an appeal to the Federal Court is available for any discriminatory term in a modern award or in an enterprise agreement. With regard to the proposals by the Senate Standing Committee on Legal and Constitutional Affairs to increase the power of the Sex Discrimination Commissioner and the Human Rights Commission in enforcement, the Government indicates that in the context of the anti-discrimination consolidation project, the Government is reviewing the roles and functions of the Australian Human Rights Commission, including the Sex Discrimination Commissioner.

The Committee notes that the Government provides statistical information on the number of complaints received by the Australian Human Rights Commission, and information on the court decisions handed down in the fiscal year 2011–12 concerning discrimination in employment and occupation. The Committee also notes the Government’s indication that the Fair Work Ombudsman received 1,040 complaints concerning workplace discrimination for the fiscal year 2011–12, among which 182 cases proceeded to investigation, indicating that discrimination based on disability, pregnancy and race were the most common subjects of complaints. With regard to the role of the Fair Work Ombudsman, the Government indicates that in 2012, information campaigns were launched including to raise awareness of discrimination on the basis of disability. The Committee further notes the information provided by the Government concerning the number of complaints regarding discrimination in employment received by each State and Territory, including information on the decisions of the Queensland Civil and Administrative Tribunal. The Committee asks the Government to provide information on the roles and functions of the Workplace Gender Equality Agency in practice, and on the progress made in reviewing the Australian Human Rights Commission, including the powers of the Sex Discrimination Commissioner, with a view to monitoring of and compliance with the relevant provisions concerning equality and non-discrimination in employment and occupation. It also 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 Fair Work Ombudsman in promoting and enforcing non-discrimination in employment and occupation, including any awareness-raising activities.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 31 August 2012.

Legislative developments. Federal. The Committee recalls 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 of 2009 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 notes the Government’s indication that a post-implementation review of the Fair Work Act of 2009 was undertaken by an independent panel of experts in 2012. The Committee also recalls that under the Human Rights Framework, which was launched in April 2010, the anti-discrimination consolidation project constitutes a key element, with a view to streamlining five Commonwealth anti-discrimination acts into a single comprehensive law. The Committee notes that the Senate Legal and Constitutional Affairs Committee released its inquiry report on the “exposure draft” of the Human Rights and Anti-discrimination Bill on 21 February 2013, and that the Government is now considering this report. The Government also indicates that it has held three stakeholder forums and separately met directly with a number of key stakeholders. In this connection, the Committee notes the observations of the ACTU, in particular, pointing out the discrepancy between the Fair Work Act and the state legislation concerning the protection for workers with family or caring responsibilities, and asking the Government to ensure that both family and caring responsibilities are included as grounds of discrimination in the consolidated Act.

The Committee notes with interest the adoption of the Workplace Gender Equality Act, 2012, which entered into force on 1 August 2013. The Act incorporates all amendments to the Equal Opportunity for Women in the Workplace Act No. 91 of 1986, and now makes specific reference to the Convention (section 5(9)), establishes the Workplace Gender Equality Agency (section 8A), requires employers to report against gender equality indicators, such as gender composition of the workforce, gender composition of governing bodies, equal remuneration between women and men, availability and utility of flexible working arrangements, and consultation with employees on issues concerning gender equality in the workplace (sections 13 and 3(1)). In addition, pursuant to section 1.1 of the Workplace Gender Equality Procurement Principles, which came into effect on 1 August 2013, “non-public sector” employers with 100 or more employees must supply a letter of compliance with the Workplace Gender Equality Act with their tender submission or prior to contracting with the Government. Pursuant to section 1.3 of the Principles, the Workplace Gender Equality Agency has responsibility for promoting and facilitating the implementation of the Principles. The Committee asks the Government to continue to provide information on the application of the Fair Work Act of 2009 with respect to the implementation of the principles of the Convention, including information on any follow-up activities to the review by the independent panel of experts. 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 any follow-up to the Senate Committee’s inquiry report. Please also reply to the issues raised by the ACTU, including with respect to the protection of workers with family or caring responsibilities. The Committee further requests the Government to provide information on the practical application of the Workplace Gender Equality Act of 2012.

Legislative developments. State. The Committee recalls the concerns raised by the ACTU on the Victoria Equal Opportunity Act of 2010, 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 notes that pursuant to Act No. 26 of 2011, amendments were made to the Equal Opportunity Act of 2010 before its entry into force on 1 August 2011, including with regard to religious bodies and schools. Pursuant to section 127 of the Equal Opportunity Act of 2010, as amended, the Victorian Equal Opportunity and Human Rights Commission may conduct an investigation where there is evidence of serious systemic discrimination. Pursuant to sections 82(2) and 83(2) of the same Act, prohibition of discrimination does not apply to religious bodies and schools that conform with the doctrines, beliefs or principles of the religion, or is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion. The Committee recalls that the concept of inherent requirements must be interpreted restrictively so as to avoid undue limitation of the protection that the Convention is intended to provide (General Survey on fundamental Conventions, 2012, paragraph 827). The Committee asks the Government to indicate how it is ensured that sections 82(2) and 83(2) of the Victoria Equal Opportunity Act of 2010, as amended, do not in practice deprive equality of opportunity and treatment in respect of employment. The Committee also 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.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. The Committee recalls the findings and conclusions of the Northern Territory Emergency Response (NTER) evaluation report regarding restrictions on the rights of indigenous peoples to land, property, work and remedies. It also recalls difficulties for the recognition of traditional lands, in particular, the five-year leases, resulting in compulsory acquisition of townships which had been held under the title provisions of the Native Title Act of 1993. The Committee further recalls the recommendations made by the Australian Human Rights Commission in 2010, 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 notes that Stronger Futures in the Northern Territory Act and the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act came into force on 16 July 2012. It further notes the Government’s indication that the Stronger Futures in the Northern Territory Act of 2012 contains measures aimed at removing barriers so that Aboriginal landowners of community living areas and town camps can use their land voluntarily for a wider range of purposes, including economic development and private home ownership. The Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act of 2012 repealed the Northern Territory National Emergency Response Act of 2007, and as a result of this new legislation, compulsory five-year leases ceased on 17 August 2012. In addition, pursuant to an amendment made by the Native Title Amendment Act No. 1 of 2010 to the Native Title Act of 1993, native title owners may request to be consulted about public housing developments. The Committee notes the Government’s indication in this regard that from June to August 2011, more than 450 meetings were held with people in around 100 communities and town camps across the Northern Territory. The Government indicates that further proposed amendments to the Native Title Act of 1993 are being finalized, outlining the consultation process and a reporting mechanism for the consultation process. The Committee also notes the Government’s indication that the Strong Futures legislation involves an investment of 3.4 billion Australian dollars (AUD) over 10 years to provide programmes and services to Aboriginal people in regional and remote areas to live strong and independent lives. The Committee notes in this connection the observation by the ACTU that adequate and appropriate consultation should also be reflected in policy development processes. The Committee 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. The Committee also asks the Government to provide information on the practical application of the Stronger Futures in the Northern Territory Act of 2012 and the Stronger Futures in the Northern Territory (Consequential and Transitional Provisions) Act of 2012, as well as any other measures taken to address discrimination against indigenous peoples with respect to employment and occupation, including information on consultation with indigenous peoples in developing policies. Please also provide information on any cases brought under the Racial Discrimination Act.

Equality of opportunity and treatment of indigenous peoples. The Committee notes the Government’s indication that in January 2012, an expert panel established by the Government to consult and report on options for the constitutional recognition of Aboriginal and Torres Strait Islander peoples, presented its report to the Government, and that in February 2012, the Prime Minister announced AUD10 million in funding for Reconciliation Australia to raise community awareness and build support for indigenous constitutional recognition. The Committee also notes the Government’s indication that among the “Closing the Gap” targets, progress has been made as follows: (i) 95 per cent enrolment for indigenous 4-year-old children in remote communities by 2013 is on track, since in 2011, almost 94 per cent of indigenous children in remote areas were enrolled in a pre-school programme; (ii) the gap in apparent retention rates until Year 12 between indigenous and non-indigenous Australians has fallen from 42.5 percentage points in 1995 to 32.2 percentage points in 2010; (iii) the rate of indigenous Australians of workforce age in regional and urban areas has risen to 54.3 per cent in 2008, from 36.4 per cent in 1994. The Government also indicates that the Indigenous Economic Development Strategy 2011–18 identifies five priority areas, including strengthening skills development and business and entrepreneurship. The Committee notes concerns expressed by the ACTU that historically, programmes under the Indigenous Economic Development Strategy have produced few real outcomes, with many participants out of work once the government funding has ceased. Under the Indigenous Employment Programme (IEP), the Indigenous Youth Career Pathways Program commenced in 2012 and provides support to Aboriginal and Torres Strait Islander secondary students to stay in school and undertake school-based traineeships. From July 2013, the IEP and other employment programmes will be replaced by a Remote Jobs and Communities Programme, with funding of AUD1.5 billion.

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 address discrimination. The Committee notes in particular that in New South Wales, a Career Pathway Indigenous Jobs Market Programme 2012 provides employers the opportunity to identify and engage with indigenous jobseekers. In the public sector, an Aboriginal Employment Action Plan 2009–12 provides strategies, including for removing barriers to indigenous people in the recruitment process. As of June 2011, a national target of 2.6 per cent indigenous employment in the public sector by 2015 was achieved in New South Wales. Following a commitment made in 2009 to employ an additional 2,229 indigenous people in the public sector over four years, by the end of December 2011, about 75 per cent of the extra positions had been filled. In Victoria, funding of AUD4.26 million has been committed to place at least 350 indigenous people in employment by June 2014. An Aboriginal Public Sector Employment and Career Development Action Plan 2010–15 focuses on building pathways for indigenous people between education and public sector employment. The “Works for Indigenous Jobseekers” programme engaging aboriginal employment brokers also continues. In Queensland, key achievements of a Reconciliation Action Plan include involving indigenous communities in taking action towards reconciliation and addressing issues of discrimination. In South Australia, a comprehensive set of programmes for aboriginal people and employers are funded addressing indigenous discrimination and disadvantage in employment. In the Northern Territory, a Public Sector Indigenous Employment and Career Development Strategy 2010–12 is being implemented, and a new strategy is being developed. In the Australian Capital Territory, an Employment Strategy for Aboriginal and Torres Strait Islander People has been newly developed. 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. The Committee also asks the Government to continue to provide information on the impact of the measures undertaken at the federal level, including with regard to the “Closing the Gap” targets, and to provide detailed information on the Remote Jobs and Communities Programme, and the Commonwealth Indigenous Economic Development Strategy 2011–18, including concrete results achieved, as well as information on any other federal initiatives aimed at promoting equality of indigenous peoples and addressing discrimination against them. Please also continue to 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.

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

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.

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

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.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

National equality policy. The Committee notes the National Human Rights Consultation which was launched in December 2008 by the Attorney-General, submitting its report in September 2009. The Committee notes the wide range of recommendations in the report, including the following: to conduct an audit of all federal legislation, policies and practices to determine their compliance with international human rights obligations, and in the audit to give priority to anti‑discrimination legislation, policies and practices and those on immigration; to better integrate human rights into public sector policy and legislative development, decision-making, service delivery and practice; to require federal departments and agencies to develop human rights action plans and report on human rights compliance in their annual reports; to increase indigenous Australians’ participation in government institutions; and to adopt a federal Human Rights Act. The Government published its response to the recommendations in the “Australia’s Human Rights Framework” in April 2010, which the Committee notes includes a commitment to develop a new National Plan of Action which will outline the programmes and action to be taken by all levels of government to promote and protect human rights. The Committee notes that a parliamentary joint committee on human rights is to be established, and that the Government intends to develop draft legislation harmonizing and consolidating anti-discrimination laws, to review federal anti-discrimination legislation to ensure it is working effectively, and to consider further the complaints handling processes and related role and functions of the Australian Human Rights Commission. The Committee asks the Government to provide information on the following:

(i)    the implementation of the Human Rights Framework as it relates to equality and non-discrimination in employment and occupation, including any progress in developing a National Plan of Action, and harmonizing and consolidating the anti-discrimination legislation;

(ii)   the role of employers’ and workers’ organizations in the process of developing and implementing the National Plan of Action;

(iii)  whether further consideration is being given to the other recommendations of the National Human Rights Consultation report noted above, including adopting a federal Human Rights Act.

Equality between men and women. The Committee notes the range of initiatives being taken to promote equality in employment and occupation between women and men, in particular at the federal level, and in New South Wales, South Australia and Victoria. With respect to concerns raised previously regarding the impact of the amendments to the Workplace Relations Act (Work Choices Act), including the reliance on individual bargaining, particularly on women seeking to balance paid work and family responsibilities, the Committee notes the Government’s acknowledgment that female employees were particularly disadvantaged by these amendments, and that the provisions at issue have been repealed as a consequence of the adoption of the Fair Work Act, 2009. The Committee notes in particular that, as a result of the adoption of the Fair Work Act, Australian Workplace Agreements (AWAs) can no longer be made, and specific provisions have been introduced to assist workers to balance work and family responsibilities, including adding “carer’s responsibilities” as a prohibited ground of discrimination (sections 153(1), 195(1) and 351(1)), and providing for parental and carer’s leave, and flexible work arrangements (section 65, divisions 5 and 7). The Committee notes, however, that with respect to the “right to request” flexible work arrangements (section 65) and an extension of unpaid parental leave for a further 12 months (section 76), the employer can refuse such requests on “reasonable business grounds” and according to section 44, it appears that the decision of the employer cannot be challenged. The Committee also notes the report of December 2008 of the Senate Standing Committee on Legal and Constitutional Affairs regarding the effectiveness of the Sex Discrimination Act, which includes a range of recommendations for the revision of the Act, as well as revisions to the Human Rights and Equal Opportunities Commission (HREOC) Act and the Equal Opportunity for Women in the Workplace Act. The Committee also notes the 2008 amendments to the Victoria Equal Opportunity Act, 1995, to facilitate accommodation of an employee’s responsibilities as a parent or carer. The Committee notes in addition that recent amendments to the South Australia Equal Opportunity Act, 1984, have added discrimination based on caring responsibilities as a prohibited ground. The Committee asks the Government to provide information on the following:

(i)    the status of the implementation of the recommendations of the Senate Committee, including the progress in adopting the Sex Discrimination Amendment Bill, 2010, to amend the Sex Discrimination Act, 1984;

(ii)   the stage of the review of the Equal Opportunity for Women in the Workplace Act, 1999, and of the Agency;

(iii)  the impact in practice of the Fair Work Act and the amendments to the Victoria Equal Opportunity Act and the South Australia Equal Opportunity Act, in assisting workers to balance work and family responsibilities, with a view to ensuring equality of opportunity between men and women in employment and occupation, and how an employee can in practice assert their right to flexible work arrangements and extension of unpaid leave in law and practice in the light of section 44 of the Fair Work Act;

(iv)  specific measures taken or envisaged to address discrimination in education and employment of migrant, refugee and minority women and the results thereof as previously requested by the Committee;

(v)   any further measures taken to improve women’s access to employment and occupation, including strengthening women’s representation in decision-making roles and the impact thereof at the federal and state levels.

Sexual harassment. The Committee notes the Government’s indication that sexual harassment continues to be a problem in Australian workplaces, principally for women, but also for men. The Committee also notes the report of the Australian Human Rights Commission of September 2010, indicating that sexual harassment accounts for one of the largest groups of complaints under the Sex Discrimination Act, and recommending, among other things, the development and implementation of a national sexual harassment prevention strategy. The Committee asks the Government to provide information on measures taken or envisaged, including the development of a national sexual harassment policy, to prevent and address sexual harassment at work.

Additional grounds of discrimination. The Committee notes the recent amendments to the South Australia Equal Opportunity Act, 1984, expanding protection against discrimination, including for discrimination based on an expanded definition of disability, and due to religious appearance or dress. The Committee previously asked the Government to provide information on exemptions from the federal Age Discrimination Act, as well as follow-up to recommendations from the HREOC regarding age discrimination. The Committee notes the Government’s indication that the “dominant reason” test in the Age Discrimination Act, 2004, has been removed through the Discrimination and Other Human Rights Legislation Amendment Act, 2009, so that it is no longer necessary to show that age was the dominant reason for a discriminatory act. The Committee again asks the Government for information on the laws and programmes that continue to be exempted from the Age Discrimination Act, as well as the measures taken to implement the recommendations of the HREOC regarding age discrimination, including the need for community education about age discrimination legislation and campaigns to discourage prejudicial stereotyping, and whether further consideration is being given to undertaking an independent review of the effectiveness of the Act, including the nature and range of exemptions permitted. The Committee would also welcome any information on the implementation in practice of the amended discrimination provisions of the South Australia Equal Opportunity Act, including with respect to the exemptions permitted.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. The Committee notes the concerns raised by the United Nations Committee on the Elimination of Racial Discrimination (CERD) regarding discrimination against indigenous peoples through the Northern Territory Emergency Response (NTER), which included the suspension of the Racial Discrimination Act, 1975. The CERD points to resulting restrictions on the rights of indigenous to land, property, work and remedies and, while noting that the complete reinstatement of the Racial Discrimination Act is scheduled for December 2010, it remains concerned by the continuing difficulties in using the Act to challenge and provide remedies for racially discriminatory NTER measures (CERD/C/AUS/CO/15-17, 13 September 2010, paragraph 16). The CERD also points to activities, notably in the extractive sector, affecting indigenous peoples’ rights to land and livelihoods, as well as difficulties related to the Native Title Act for the recognition of traditional lands (paragraphs 13 and 18). The Committee asks the Government to provide information on 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 the progress of reinstating the Racial Discrimination Act, and on concrete measures to address discrimination against indigenous peoples due to the NTER with respect to occupation, employment and access to remedies.

Parts III and IV of the report form. Supervision and enforcement. The Committee notes the Government’s indication that, pursuant to the Fair Work Act, Fair Work Australia is now responsible for overseeing the new workplace relations system, and has power to help employees and employers resolve discrimination disputes at the workplace. The Government notes further that the Fair Work Ombudsman promotes compliance with the legislation, and can engage Fair Work Inspectors who can, where necessary, take steps to enforce the Act through the court system. The Committee also notes that the recommendations of the Senate Standing Committee on Legal and Constitutional Affairs, referred to above, include 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 HREOC. The Committee also welcomes the detailed information provided by the Government regarding the relevant case law from New South Wales, Victoria, Queensland and South Australia, as well as details of complaints handled by the HREOC, and State Boards, Commissions and Tribunals of New South Wales and Queensland. Noting 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 requests the Government to indicate how violations of sections 153 and 195 are addressed, including the remedies and sanctions available. The Committee also asks the Government to provide information on the following:

(i)    any action taken by Fair Work Australia, the Fair Work Ombudsman, the Fair Work Inspectors and the courts in relation to the non-discrimination provisions of the Fair Work Act;

(ii)   any steps taken to implement the recommendations regarding increasing the powers of the Sex Discrimination Commissioner and the HREOC; and

(iii)  any further legal or administrative decisions or complaints addressed at the state level relevant to the implementation of the Convention.

Tasmania. Noting that no information has been provided in the Government’s report regarding the application of the Convention in Tasmania, the Committee asks the Government to ensure that such information is included in its next report.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Legislative developments. The Committee notes with interest the adoption of the Fair Work Act, 2009, which became fully operational in January 2010, substantially repealing the Workplace Relations Act, 1996. The Committee also notes the communication of the Australian Council of Trade Unions (ACTU), stating that the Fair Work Act contains significant improvements in protection from discrimination at work, and also noting the adoption of the Paid Parental Leave Act, 2010, which will provide Australia’s first statutory paid parental leave scheme as of 1 January 2011. The Committee notes in particular that one of the objectives of the Fair Work Act set out in section 3 is “assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and ... protecting against unfair treatment and discrimination ...”. Pursuant to section 134, an objective of the “modern awards” (legal instruments setting minimum terms and conditions for national system employees in particular industries or occupations) includes “the need to promote social inclusion through increased workforce participation ...”, and modern awards and enterprise agreements must not include terms that discriminate against an employee “because of, or for reasons including, the employee’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin” (sections 153(1), 194(a) and 195(1)). The Act further provides a general prohibition of an employer taking any “adverse action” against an employee or prospective employee on these same grounds (section 351). The Committee notes in this regard that all the prohibited grounds enumerated in Article 1(1)(a) of the Convention have been included, as well as a range of additional grounds, as foreseen in Article 1(1)(b), and provides improved protection for prospective employees from discrimination in access to employment, as well as covering aspects of employment and occupation beyond dismissal. The Committee asks the Government to provide information on the following points:

(i)    the implementation of the Fair Work Act and the Paid Parental Leave Act in practice, including any measurable impact with respect to promoting equality of opportunity and treatment in employment and occupation, with a view to eliminating any discrimination in respect thereof;

(ii)   any legal or administrative decisions regarding the non-discrimination provisions of the Fair Work Act, including any determinations of what is not considered discrimination pursuant to sections 153(2), 195(2)
and 351(2);

(iii)  the progress of the States’ acceptance of the jurisdiction of the Fair Work Act.

Indigenous peoples. The Committee had raised concerns in its previous observation in relation to the education and employment opportunities of indigenous peoples, including the lack of sufficiently targeted measures to address inequality and discrimination, and the lack of appropriate mechanisms. The Committee notes with interest the Government’s expression of support in April 2009 for the United Nations Declaration on the Rights of Indigenous Peoples, as well as the national apology for past negative government policies issued on 13 February 2008 to indigenous peoples, and in particular to the Stolen Generations – the generations of indigenous peoples taken away from their families and communities. The Committee also notes with interest the wide range of initiatives at the federal and state levels that have been undertaken to address inequality and discrimination that have been experienced by indigenous peoples. The Committee notes in particular the National Indigenous Reform Agreement between the federal, state and territory governments of Australia (the Council of Australian Governments) of November 2008, committing all jurisdictions to achieve the “Closing the Gap” targets, to address disadvantage-facing indigenous peoples, one of the aims of which is to halve the gap in employment outcomes between indigenous and non-indigenous peoples within a decade. The Agreement refers specifically to the reformed Indigenous Employment Programme (IEP) which is to make employment and training services more responsive to the specific needs of indigenous jobseekers, indigenous businesses and employers. It also refers to the development of a Commonwealth Indigenous Economic Development Strategy (IEDS), with the aim of contributing to the achievement of long-term economic independence for indigenous Australians by promoting economic participation and wealth creation by indigenous communities and individuals, and through the strengthening of partnerships with the corporate sector. The Committee also notes that the Government refers to a new Community Support Programme. The Committee notes, however, the Government’s indication that, in 2008–09, Job Network members placed 23 per cent fewer indigenous jobseekers into jobs than in the previous year.

At the state level, the Committee notes in particular the following initiatives: in Victoria, the New Workforce Partnerships, the Indigenous Youth Employment Programme, the Wur-cum barra to increase indigenous employment across the public sector, and the Koori Business Network; and in Queensland – the Skilling Queenslanders for Work initiative, the Indigenous Economic Participation National Partnership with the aim of reforming government procurement, service delivery arrangements and increase public sector employment to improve indigenous participation in the labour market, the Department of Education and Training’s Aboriginal and Torres Strait Islander Employment Framework for Action 2007–10, and the Positive Dreaming Solid Futures – Indigenous Employment and Training Strategy 2008–11. Initiatives in South Australia include an updated Strategic Plan, which establishes targets to increase aboriginal workforce participation, and the South Australian Works initiative, delivering specific programmes aimed at improving employment and vocational training outcomes for aboriginal peoples; and in New South Wales (NSW), the strategy entitled “Making it our Business Improving Aboriginal Employment in NSW public sector” was being reviewed with a view to strengthening support in the recruitment, employment and development of aboriginal and Torres Strait islanders in the NSW public sector.

Welcoming the range of statements and initiatives at the federal and state levels that indicate a commitment to promoting and protecting the rights of indigenous peoples, including in education, employment and occupation, the Committee encourages the Government to continue its efforts in this regard. It also asks the Government to continue monitoring the impact of these measures, and to provide information on the role of indigenous peoples in developing and implementing these initiatives, and the actual outcomes achieved.

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

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Legislative developments. The Committee notes that the Age Discrimination Amendment Act, 2006, provides that certain laws and programmes are exempted from the scope of the Age Discrimination Act, 2004. The Committee requests the Government to provide information on which laws and programmes continue to be exempted from the Age Discrimination Act and the reason for such exemptions. The Committee also requests the Government to provide information on any measures taken to implement the recommendations of the Human Rights and Equal Opportunities Commission (HREOC) regarding age discrimination, including the need for community education about age discrimination legislation, and campaigns to discourage prejudicial stereotyping.

2. Equality of opportunity and treatment of men and women. The Committee previously noted the concerns of the HREOC regarding the impact of the amendments to the Workplace Relations Act (Work Choices Act), including on the ability of certain workers, in particular women, to balance paid work and family responsibilities. On the issue of reconciling work and family responsibilities, particularly for women, the Government states that the Act facilitates choices for families, rather than mandating a particular approach to family life, and that employers and employees can negotiate a family-friendly workplace agreement that is tailored to suit their individual needs. Noting the Government’s reliance on individual bargaining to address the needs of workers with family responsibilities, in particular women, the Committee is concerned that there is often an imbalance of bargaining power that may negatively impact on women’s employment opportunities, and asks the Government to examine the practical impact of the Work Choices Act in this regard and keep the Committee informed of the findings.

3. The Committee notes from the information provided by the Government that while women still account for a low percentage of executive managers (12 per cent), the numbers are increasing. With respect to board directors and chief executive officers, the proportion of women has not changed in recent years (8.7 per cent and 3 per cent respectively), though women’s representation at senior levels of the public sector continues to rise (34.8 per cent). The Committee asks the Government to provide information on measures taken to improve women’s access to employment, in particular to management level positions, in the private sector, including the practical impact of the Women’s Leadership and Development Programme. Noting the concerns raised by the Committee on the Elimination of Discrimination against Women regarding discrimination in education and employment of immigrant, refugee and minority women based on their ethnic background (CEDAW/C/AUL/CO/5), the Committee requests the Government to provide  information on any measures taken in this regard.

4. National machinery to promote equality. The Committee requests the Government to provide information on the nature of the complaints brought before the HREOC, and to continue to keep the Committee informed of any further developments in reforming the HREOC.

5. Dispute resolution mechanisms. With respect to the Work Choices Act, the Committee previously noted the concerns of the HREOC regarding the effect of the reforms on dispute resolution mechanisms addressing discrimination. The Government states in this regard that since the adoption of the Act, there has been an increase in applications involving unlawful termination of employment filed in the Federal Court. The Committee requests the Government to provide information not only on the number of applications before the Federal Court for unfair termination on discriminatory grounds, but also regarding the outcome of such cases. The Committee also requests information regarding the accessibility, in terms of cost, time, location, etc., of the Federal Court processes for unfair termination, and other discrimination cases, as compared with what was previously available through the anti-discrimination agencies.

States and territories

6. New South Wales. The Committee notes the various initiatives to improve employment opportunities for women, including through skills training courses, the Young Women’s Leadership Project, Lucy Mentoring Programme, and the Women’s Employment Rights Project. The Committee notes in particular that the Public Sector Workforce Office is developing a Women’s Employment and Development Strategy for the public sector. Other initiatives are aimed at increasing the participation of indigenous peoples in the workforce, and providing training and awareness-raising for people from culturally and linguistically diverse communities. Noting the various initiatives that are planned or ongoing, the Committee would welcome information on the practical impact of these initiatives on the employment of women, indigenous peoples, and people from culturally and linguistically diverse communities, including the increase in the number of members of these groups in public and private sector employment, including in management and senior positions. The Committee also requests the Government to provide information on the number of women undertaking skills training, and in which subjects. The Committee looks forward to receiving a copy of the Women’s Employment and Development Strategy once it has been adopted.

7. Northern Territory. The Committee notes the initiatives taken to assist employment-disadvantaged people and indigenous Territorians. The Committee requests the Government to continue to provide information on the initiatives to assist employment-disadvantaged people, and the outcome of these programmes, as well as information on the impact of the targeted training programmes for indigenous Territorians. Noting that the Anti-Discrimination Commission has proposed that the Public Sector Employment and Management Act be amended to allow special measures in employment, the Committee asks to be kept informed of any developments in this regard.

8. Queensland. The Committee notes that the Indigenous Employment and Training Directorate has been abolished, with Queensland now participating in policy setting for the national training system. The Committee also notes the adoption of the Disability Services Act, 2006, the Queensland Skills Plan, and the Multicultural Employment Strategy. The Committee requests the Government to provide further information on the impact of the abolition of the Indigenous Employment and Training Directorate, in particular with respect to addressing the specific training and employment needs and aspirations of indigenous Australians. Please also continue to keep the Committee informed of the various initiatives aimed at improving training and employment opportunities of disadvantaged groups, and the outcome of these initiatives.

9. South Australia. The Committee notes that amendments to the Equal Opportunity Act have not yet been adopted. The Committee also notes further the report of the Equal Opportunity Commission 2005–06, highlighting the initiatives taken by the Commission to address discrimination and promote equality. The Committee notes in particular the Commission’s concern regarding increased discrimination against local Muslims. The Committee requests the Government to keep it informed of the status of the amendments to the Equal Opportunities Act, as well as the impact of the recent amendments to the Fair Work Act. Please also keep the Committee apprised of measures taken or envisaged to address discrimination in employment and occupation against Muslims.

10. Victoria. The Committee notes the adoption of the Charter of Human Rights and Responsibilities Act, 2006, the Justice Legislation (Further Amendment) Act, 2006, and the Equal Opportunity Amendment Act, 2007. The Committee also notes the various programmes under way, including the Parents Returning to Work Programme, Vocational Training for Clothing Outworkers, Wur-cum barra Victoria Public Service Indigenous Employment Strategy, as well as the establishment of the Office of the Workplace Rights Advocate. The Committee requests the Government to provide information regarding the impact of the new legislation and programmes, and to provide further information regarding the activities of the Office of the Workplace Rights Advocate in promoting equality in employment and occupation.

11. Western Australia. The Committee notes that the Substantive Equality Unit within the Equal Opportunities Commission provides support for the implementation of the Policy Framework for Substantive Equality, aimed at addressing systematic racism. The Committee requests the Government to provide more detailed information on the Policy Framework for Substantive Equality, including practical measures taken to address racism and the outcome of such measures. Noting the Government’s indication that the Equal Opportunity Tribunal appears to have been abolished, the Committee requests the Government to provide more information on the dispute resolution processes now in place to address discrimination issues.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. In response to the Committee’s previous observation regarding the impact of reforms concerning structures and programmes for indigenous peoples, with respect to promoting equal access to education, training and employment, the Government indicates that the unemployment rate of indigenous peoples has decreased from 16.5 per cent in 2005 to 14.3 per cent in 2006. The Government refers to plans to prioritize indigenous education and underlines the impact of the Community Development Employment Projects (CDEP), resulting in 1,575 jobs in 2004–05 and increasing to 5,770 jobs in 2006–07. The Committee also notes the Structured Training and Employment Project (STEP), the Employment Related Services (ERS), as well as job placements by Job Network members, and the National Strategy for Vocational Education and Training. The Government states that many of the reforms were designed to increase indigenous economic independence by reducing dependency on passive welfare through stimulating employment and economic development opportunities for indigenous peoples.

2. The Committee also notes the concerns raised in this respect by the Human Rights and Equal Opportunity Commission (HREOC) in the 2006 Social Justice Report, including concerns regarding the complexity of the new arrangements, the lack of sufficiently targeted measures to address the existing level of inequality and discrimination experienced by indigenous peoples, and the lack of mechanisms for engagement with indigenous peoples. The HREOC also notes that the Government has indicated that in future, 7,000 workers will lose their CDEP wage and that the indigenous employment centres will be abolished. The HREOC has made a number of recommendations, including that an inquiry be conducted aimed at, among other things, identifying the following: (i) progress in addressing existing inequalities in indigenous peoples’ access to mainstream services; (ii) progress in ensuring that processes are sufficiently targeted; (iii) effective, sustainable and representative mechanisms for the participation of indigenous peoples; and (iv) the adequacy of performance, monitoring and evaluation mechanisms for the new arrangements. In addition, the Committee on the Elimination of Discrimination against Women, has expressed concern about the ongoing inequalities suffered by Aboriginal and Torres Strait Islander women “whose enjoyment of human rights remains unsatisfactory in many areas, particularly with regard to employment, education …”; it recommended that targeted measures be adopted and that measures be taken to increase their access and awareness of the availability of targeted social services in all sectors (CEDAW/C/AUL/CO/5, 3 February 2006, paragraphs 30–31).

3. Noting that the Government is moving away from a system of special measures regarding education and employment of indigenous peoples, to bring them closer to “mainstream” services, the Committee recalls the importance of special measures in ensuring real equality of opportunity and treatment in practice, taking into account the diversity of situations of certain persons so as to prevent discriminatory practices (Equality in employment and occupation, Special Survey, 1996, paragraph 135). In this context, the Committee asks the Government to provide information on the steps taken to implement the recommendations set out in the Social Justice Report as they relate to education and employment opportunities of indigenous peoples. The Committee also requests the Government to provide further information on the reforms undertaken and envisaged, including their practical impact on education, training and employment of indigenous Australians, both women and men, including statistics disaggregated by sex.

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

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the detailed information in the Government’s report and asks the Government to provide information on the following points.

1. Article 1 of the Convention. The Committee notes with interest the adoption of the Age Discrimination Act, 2004, prohibiting direct and indirect discrimination on the basis of age in the areas of work and education. It further notes with interest the adoption of the amendments to the Sex Discrimination Act whereby the Government explicitly recognized breastfeeding as a potential ground of discrimination and makes it unlawful to ask women for information about actual or potential pregnancy. Please provide information on the impact of these new legal measures in the promotion of equal opportunity and treatment in employment and occupation, including relevant case law on these same matters.

2. National machinery to promote equality. The Committee notes from the Government’s report that the Australian Human Rights Commission Legislation Bill, 2003, lapsed and that there is currently no legislation before the Parliament dealing with the Commission’s restructuring. Given the Government’s indication that it remains committed to pursuing legislative reform with respect to the structure of the Commission, the Committee reminds the Government of its hope that the Commission’s ability to act as an independent and effective actor in the enforcement of legal provisions on non-discrimination and equality in employment and occupation will be maintained. The Committee asks the Government to keep it informed of any developments in this regard.

3. The Committee understands that the Government’s new workplace reforms package, WorkChoices, took effect in March 2006. Among the many changes resulting from these reforms, the Government amended the Workplace Relations Act to exempt businesses employing up to 100 employees from unfair dismissal laws. The Government indicates that despite this amendment, it continues to protect all employees by providing a remedy for unlawful termination, which prohibits dismissal on discriminatory grounds. The Committee notes that in its submission on this matter to the Senate in 2005, the Human Rights and Equal Opportunity Commission (HREOC) voiced concerns that, in the absence of alternative remedies for unfair dismissal, many employees would be likely to pursue complaints with state and federal anti-discrimination agencies, placing significant pressure on existing complaints mechanisms both at the state and federal levels. In addition, the HREOC was concerned that the WorkChoices reforms, particularly the move towards individual bargaining agreements, posed a risk to the ability of certain workers, women in particular, to balance their paid work and family responsibilities. The Committee asks the Government to include detailed information, in its next report, on the impact of its WorkChoices reforms on existing discrimination dispute mechanisms, as well as on how these reforms impact on workers’ with family responsibilities.

4. Article 2. Equality of opportunity and treatment of men and women. The Committee notes the communication from the Australian Council of Trade Unions (ACTU) indicating that, despite the increased participation of women in the labour market, women workers with family responsibilities often take casual jobs which pay less, lack job security and offer fewer career development opportunities. The ACTU further points out that women workers continue to be under-represented in senior posts in both the private and public sectors. The figures provided by the Government confirm this assessment showing that, in 2004, women accounted for only 10.2 per cent of executive managers and only 8.6 per cent of board directors, whereas, in the public sector, the percentage of women in senior positions was higher at 31.6 per cent. The Committee asks the Government to continue to provide information on the progress made in improving the employment situation of women, particularly with regard to access of women to management-level positions in the private and public sectors. In this regard, please also provide information on the implementation and outcomes of the Women’s Leadership and Development Programme. The Committee is addressing other matters raised in the ACTU’s comments on Convention No. 111 under the Workers with Family Responsibilities Convention, 1981 (No. 156).

5. States and territories. New South Wales. The Committee notes the amendments made in 2004 to the Anti-Discrimination Act regarding the handling of complaints, standards on disability discrimination as well as provisions relating to the preparation of codes of practice. It further notes the creation of the Office for Women in the NSW Premier’s Department and the Government’s Action Plan for Women (2003-05) along with the results achieved in promoting employment in the public sector among women, indigenous peoples and immigrants from non-English-speaking backgrounds. The Government is invited to continue providing information on the measures taken and results achieved in applying the principles of the Convention, particularly with respect to its efforts to increase the number of women employed in both the public and private sectors on boards and in management positions. Please also include information on the improvement of employment opportunities for indigenous peoples and non-English-speaking migrants in New South Wales.

6. Queensland. The Committee notes the numerous training and employment initiatives with respect to disabled persons, indigenous peoples, migrants and people from non-English-speaking backgrounds. With respect to Indigenous Queenslanders, it notes the creation of an indigenous unit within the Anti-Discrimination Commission along with the newly-established Indigenous Employment and Training Directorate to help improve the employment and training prospects for Aboriginal and Torres Strait people. Please continue to provide information on the outcomes of these initiatives and on the work of the new bodies in promoting equality of opportunity and treatment in employment and occupation.

7. Western Australia. The Committee notes that the Western Australian Equal Opportunity Commission continues to undertake a range of promotional activities and initiatives to raise awareness and address issues of racial discrimination and harassment. The Committee invites the Government to provide information in its next report on the concrete measures taken to apply the Convention along with their practical outcomes.

8. South Australia. The Committee notes that proposals to amend the Fair Work Act were released for public consultation in 2003 including plans for expanded protection of people with disabilities, greater protection against sexual harassment and the provision of conciliation services for people who are the victims of racial and other vilification. The Government is asked to provide information on the follow-up to these proposals. Please also continue to provide information on how the principles of the Convention are applied in law and in practice in South Australia.

9. Northern Territory. Recalling its previous comments on the amendments to the Anti-Discrimination Act, the Committee notes from the Government’s report that section 105 of the Act concerning vicarious liability has not yet been challenged in any hearings before the Commissioner nor appealed to the Local Court since its adoption. The Committee notes with interest the strategies implemented by the Office of the Commissioner for Public Employment to promote work opportunities among indigenous peoples, women and people with disabilities in the Northern Territory Public Sector. The Committee invites the Government to include information in its next report on the practical outcomes of these programmes and to detail its efforts to combat discrimination and promote employment for disadvantaged groups in both the private and public sectors.

10. Victoria. The Committee welcomes the inclusion in the Government’s report of information from the state and territory jurisdictions. It notes, however, that for the last two reporting periods, there has been no information on the application of the Convention for the State of Victoria. The Committee therefore asks the Government to include information on the State of Victoria in its next report to assist the Committee in gaining a full appreciation of the manner in which the Convention is applied.

11. Queensland and the Northern Territory. The Committee notes the information in the Government’s report with respect to the training provided to prisoners in Queensland and the Northern Territory with a view to promoting access to employment upon release. Noting that this matter relates to responsibilities of the state and territory jurisdictions, the Committee would appreciate if the Government would include similar information in its next report on the initiatives taken in the remaining jurisdictions.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

Recalling its previous comments on the disproportionately high unemployment rate of indigenous Australians compared with the non-indigenous population, the Committee notes from the Government’s report that more indigenous jobseekers benefit from Australia’s mainstream employment services (Job Network) than from all the programmes tailored to indigenous peoples combined under the Indigenous Employment Policy. In this context, the Committee notes from the Social Justice Report, 2005, that the Government abolished the Aboriginal and Torres Strait Islander Commission (ATSIC) and transferred responsibility over policy-making and programme delivery to existing government departments and agencies. It notes in this regard the concerns expressed by the Committee on the Elimination of Racial Discrimination (CERD/C/AUS/CO/14 of 14 April 2005)  that the abolition of ATSIC will reduce the participation of indigenous peoples in decision-making and alter the Government’s capacity to address the full range of issues relating to indigenous peoples. The Committee, therefore, asks the Government to provide further details on the impact of this reform with respect to promoting equal access to education, training and employment of indigenous Australians. It further asks the Government to continue providing statistics on employment rates for indigenous peoples to allow the Committee to measure progress in this regard. Please also keep the Committee informed of the deliberations and outcome of the ongoing inquiry into indigenous employment by the Standing Committee on Aboriginal and Torres Strait Islander Affairs.

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

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s report and the attached documentation and asks the Government to provide information on the following points.

1. The Committee recalls that the Human Rights Legislation Amendment Act (No. 1), 1999 (HRLAA), removed the public hearing function of the Human Rights and Equal Opportunity Commission (HREOC), while providing access to the federal court system in cases before the HREOC in which conciliation failed or was terminated for other reasons. In this respect, the Committee notes the findings of a review undertaken by HREOC of the operation of the HRLAA during 2001. The HREOC found that, during the period examined, there was no decrease in the number of complaints lodged under federal discrimination law and that a significant number of complainants used the access to the federal court system, while the percentage of complaints that were conciliated increased. The Committee also notes that, according to the Government, the decisions of the Federal Court and the Federal Magistrate Service under the Racial Discrimination Act and the Sex Discrimination Act between September 2000 and September 2003 had so far been consistent with the principles developed by the HREOC. The Committee requests the Government to continue to provide information on the functioning of the national human rights and equality machinery, including the number, nature and outcomes of cases brought before the HREOC and the courts under federal anti-discrimination legislation.

2. The Committee thanks the Government for the detailed information provided in reply to the 2002 general observation on the issue of sexual harassment, including indications concerning the relevant case law. The Committee would appreciate continuing to receive information on new developments on this issue, including the results of the research currently undertaken by the Australian Industrial Relations Commission and the revised code of practice when it is finalized.

3. The Committee notes the information contained in the Government’s report on the status of women in the labour force. It notes that 52 per cent of all new jobs created between 1996 and 2003 were occupied by women and that the labour force participation rate of women was 67.5 per cent in March 2003. However, women are still underrepresented among those holding senior posts in the private sector and the Australian Public Service. The Committee requests the Government to continue to provide similar information in its next report, including statistical information. Emphasizing the need to take into consideration the effects of multiple forms of discrimination, the Committee also requests the Government to provide statistical information on the employment situation of indigenous women and women of immigrant background.

4. With reference to its previous comments, the Committee notes the detailed information provided on the activities of the Equal Opportunity for Women in the Workplace Agency (EOWA). It notes that 2,644 organizations reported to the Agency in 2001-02 out of which 74 per cent had finalized their equal opportunity assessments. Of these reports 92 per cent were considered to be in compliance with the Equal Opportunity for Women in the Workplace Act, 1999 (EOWWA), and 3 per cent of the organizations were waived from reporting for the next three years. The number of non-compliant organizations was 29 in 2001 and 24 in 2003. The Government is requested to continue to provide information on the operation of the EOWWA and the activities of the EOWA, including copies of its annual reports, and their impact on women’s equality in the workplaces covered. Please also indicate in which ways the EOWA cooperates with workers’ organizations.

5. The Committee notes that the Government is currently considering the proposals made by the Sex Discrimination Commissioner in her report entitled "A time to value: Proposal for a paid maternity leave scheme" and that the Prime Minister has established an interdepartmental taskforce on work and family to review options to facilitate the choice of parents in balancing their work and family lives. The Committee also notes that a Bill to amend the Sex Discrimination Act to clarify the prohibition of pregnancy discrimination was introduced to the federal Parliament in June 2003. Please keep the Committee informed of these initiatives, including results and follow-up measures.

6. Recalling its comments concerning the high number of indigenous Australians who come before the criminal justice and penal systems, the Committee notes the information provided by the Government outlining the assistance available to indigenous offenders upon release under the Indigenous Employment Policy. The Committee requests the Government to indicate the kind of training provided during imprisonment with a view to promoting access to employment upon release.

7. In respect to the absence of a statutory right to an interpreter in federal tribunals and the Committee’s concern that this situation may affect complaints made by Aboriginal and Torres Strait Islander people and people of non-English-speaking background, the Committee notes the Government’s statement that the introduction of such a right is currently not under consideration. Noting the Government’s indication that the federal courts provide interpreter services for litigants where they do not have the financial means to purchase the service and that the federal tribunals provide free interpreters for applicants as required, the Committee requests the Government to indicate the percentage of cases in which interpreters have been provided to Aboriginal and Torres Strait Islander people and people of non-English-speaking background in proceedings in federal courts and tribunals.

8. States and territories. (a) New South Wales. The Committee notes with interest the progress made in reaching the Government’s target for the employment of indigenous Australians and women in the public sector. With regard to discrimination on the basis of national extraction, the Committee notes with interest the action research project to assist job applicants of immigrant background to effectively present their skills and experience when applying for positions requiring their generic skills. Please keep the Committee informed of the results of this project and of any other measures taken to further promote the application of the Convention.

(b) Queensland. The Committee notes that the Anti-Discrimination Act, 1991, was amended in 2002 to include breast-feeding as a prohibited ground of discrimination. It also notes that the next national vocational education and training strategy (2004-10) will include improving outcomes for indigenous Australians as a key focus. Please continue to provide information on the concrete measures taken to apply the Convention.

(c) Western Australia. Recalling it previous comments, the Committee notes the Government’s indication that the growing number of complaints of race discrimination in Western Australia may be attributed to the greater general awareness of the Equal Opportunity Act, 1984. Complaints of race discrimination or racial harassment have increased from 125 in 2000-01 to 175 in 2001-02. The Committee is looking forward to receiving further information on the various measures taken to promote equality of opportunity and treatment in employment and occupation.

(d) South Australia. The Committee notes that the review of the South Australian Industrial Relations System undertaken in 2002 recommended that the South Australian Industrial Relations Commission be required to apply the principles of the Workers with Family Responsibilities Convention, 1981 (No. 156), when exercising its powers and that the current industrial relations system does not necessarily effectively address the specific needs of different groups in the workforce, including people from non-English-speaking and indigenous backgrounds, women and people with disabilities. The Committee would appreciate receiving information on the follow-up measures taken to the review’s recommendations. Noting that the review did not recommend the incorporation of Convention No. 111 into the Industrial and Employee Relations Act due to a number of reasons, including the Convention’s age and that it does cover certain grounds of discrimination, the Committee draws attention to the fact that Convention No. 111 has not only been considered as up to date by the Governing Body of the ILO, but is also one of the ILO’s fundamental human rights Conventions. The Committee also points to Article 1(1)(b) of the Convention which provides that any additional ground may be declared, as has been done at the federal level.

(e) Northern Territory. Noting that the Anti-Discrimination Act was amended in 2001 to provide for a definition and limits of vicarious liability of employers and principals for acts of their workers and agents, the Committee requests the Government to provide information on the application of this amendment. Please continue to provide information on the various policies and programmes implemented by the office of the Commissioner for Public Employment to promote the Convention’s application, including in respect to women and Aboriginal and Torres Strait Islander people.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

1. Recalling its previous comments concerning the draft Human Rights Legislation Amendment Act No. 2, the Committee notes that this Bill was superseded by the draft Australian Human Rights Commission Legislation Act, 2003, which is currently before the Senate. The new Bill makes education and information dissemination the priority function of the existing Human Rights and Equal Opportunities Commission (HREOC), which will be renamed the Australian Human Rights Commission. According to the Government, the existing powers of the HREOC to investigate and conciliate complaints will be retained. However, the Committee notes that the future Australian Human Rights Commission would no longer have the power to recommend payment of damages or compensation and that this is being considered by the current HREOC as a limitation of its inquiry powers. The future Commission would also no longer have the right to intervene in court proceedings involving human rights and discrimination issues, except with the consent of the Attorney-General. With reference to its previous comments, the Committee further notes that the new Bill replaces the current five portfolio-specific commissioners, including the Aboriginal and Torres Strait Islander Social Justice Commissioner, with three generic human rights commissioners. Aware of the ongoing debate in Australia on these changes, the Committee hopes that the Commission’s ability to act as an independent and effective actor in the enforcement of legal provisions on non-discrimination and equality in employment and occupation will be maintained, and asks the Government to provide information on the contents and status of this legislative initiative.

2. The Committee remains concerned over the disproportionately high unemployment rate of indigenous Australians. It notes from the Government’s report and data released by the Australian Bureau of Statistics that there were 410,003 people (2.2 per cent of the total population) in Australia who are identified as being of indigenous origin in the 2001 census, which represents an increase of 54.5 per cent since the 1991 census. According to the 2001 census, the unemployment rate among persons of indigenous origin was 20 per cent (men 21.8 per cent and women 17.6 per cent), while the rate for non-indigenous persons was 7.2 per cent. In this context, the Committee notes the information provided by the Government on the policies adopted and measures taken to promote employment of indigenous Australians. According to the Government, a total of 8,612 indigenous persons were placed in employment in 2002-03 through programmes under the Indigenous Employment Policy and that only approximately 57 per cent of the persons placed were still in employment three months after assistance ceased. The Committee requests the Government to continue to provide detailed information on the implementation and impact of the measures taken to promote equal access to education, training and employment of indigenous Australians, with a view to eliminating discrimination and in particular measures to retain indigenous Australians in employment.

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

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report and the many documents attached.

1. As regards the National Advisory Committee on Discrimination in Employment and Occupation (NACDEO) which was created to report to the Attorney-General on Australia’s compliance with the present Convention and to advise the Commission, the Committee notes with regret that the Human Rights Legislation Amendment Bill (No. 2) 1999, which is currently awaiting debate by the Senate, would repeal section 17 of the HREOA which provides for the establishment of advisory committees. Noting the Government’s statement that with submitting a draft national policy on equality of opportunity and treatment in employment and occupation to the Attorney-General NACDEO has completed its work, the Committee hopes the national policy will be adopted soon and asks the Government to keep it informed in this respect. As the Committee understands that the functions of NACDEO would be performed by the Human Rights and Equal Opportunity Commission, the Government is asked to provide information on its activities to promote the observance of the Convention.

2. The Committee notes the information contained in the Government’s report on measures taken to assist employees to balance their work and family responsibilities and to counter employment discrimination on the basis of pregnancy. In respect to the latter issue, the Committee notes with interest the Pregnancy Guidelines issued by the Human Rights and Equal Opportunities Commission, containing information to assist employers complying with their obligations as well as improving productivity and efficiency. The Government is asked to continue to provide information on measures taken to ensure gender equality, such as the Return to Work Programme and the Community Support Programme, and their impact on equal access of women to training, employment, and terms and conditions of employment. Please also continue to provide information on the employment-related activities of the Office of the Status of Women and up-to-date statistical data on the position of women in the labour market.

3. The Committee notes with interest that the Human Rights and Equal Opportunity Commission has engaged in extensive national consultations on employers’ responsibilities to avoid discrimination on the ground of religion and notes the information paper published by the Commission on this issue. It also notes the proposal by the Commission for a Religious Freedom Act which, inter alia, would make discrimination on the basis of religion in employment and occupation unlawful. The Committee would be grateful to continue to receive information on measures taken or envisaged by the Government with a view to eliminating religious discrimination in employment and occupation.

4. The Committee notes that in 1999-2000, there were 143 complaints before the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act, 1975 and the examples of cases referred to in the Government’s report. Please continue to provide information on measures taken to combat racism in employment, including in the context of the national follow-up to the Durban World Conference against Racism (2001), and on any relevant judicial or administrative decisions.

5. Recalling its previous comments on the level of access, participation and outcomes enjoyed by indigenous Australians, the Committee notes that the National Aboriginal and Torres Strait Islander Education Policy (AEP) has been replaced by the Indigenous Education Strategic Initiatives Programmeme (IESIP). The Committee would be grateful if the Government could provide detailed information about the new policy, its implementation and results achieved so far.

6. Recalling its previous comments concerning the absence of a statutory right to an interpreter in federal tribunals and how this situation may affect complaints made by Aboriginal and Torres Strait Islander people and people of non-English-speaking background under the Racial Discrimination and Work Relations Act, the Committee notes that the Government’s statement that in the Commonwealth’s view the ongoing funding of indigenous interpreter services is a matter for the states and territories. The Committee recalls that its request concerned the situation in federal tribunals under Commonwealth legislation. It reiterates its request to the Government to consider a statutory right to an interpreter in these tribunals, and asks the Government to provide information on measures taken to that end.

7. New South Wales. With reference to its previous comments, the Committee notes with interest that Part 4 (Parental Leave), of the Industrial Relations Act was amended in 2000 to extend parental leave to long-term casual workers who have been employed with their employer over 24 months and that an amendment to the Anti-Discrimination Act, which prohibits discrimination on the grounds of responsibilities as a carer, came into effect on 1 March 2001. Noting that the Government is currently examining a report launched by the Law Reform Commission in December 1999 proposing additional changes to the Anti-Discrimination Act, the Committee asks the Government to keep it informed on any developments in this respect. Noting the information on the participation of identified groups, including Aboriginal and Torres Strait Islander people, women, disabled persons and people whose first language is other than English in the public sector and the various measures taken to promote their equality, the Committee is looking forward to receive similar information in the future. Please also provide a copy of the guidelines on identifying and eliminating discrimination in industrial instruments published by the Anti-Discrimination Board and the Department of Industrial Instruments.

8. Queensland. The Committee notes with interest the amendment to the Anti-Discrimination Act, 1991 extending its application to acts done on ships "connected to Queensland" and to subcontract type arrangements, as well as introducing provisions on racial and religious vilification. The Government is requested to provide information on the application of these changes in practice. Please also continue to provide information on the activities and decisions relating to equality and non-discrimination in employment of the Anti-Discrimination Commission Queensland under the Anti-Discrimination Act and the Industrial Relations Act.

9. Western Australia. With reference to its previous direct request, the Committee notes that the Government attributes the growing number of complaints of race discrimination to the greater awareness of the Equal Opportunity Act and work of the Western Australian Equal Opportunity Commission. The Committee notes that the number of complaints concerning racial discrimination and racial harassment continued to increase between 1999 and 2001. Noting the various promotional activities of the Commission, including assistance provided to indigenous people to lodge complaints, the Government is encouraged to provide similar information in the future.

10. South Australia. The Committee requests the Government to continue to provide information on the implementation of the South Australian Wages Parity Enterprise Agreement 1999 and on whether similar agreements exist in the private sector.

11. Northern Territory. The Committee notes that section 57 of the Northern Territory Anti-Discrimination Act provides that a person may discriminate against another person in a programme, plan or arrangement designed to promote equality of opportunity for a group of people who are disadvantaged or have a special need because of an attribute until equality of opportunity has been achieved. With reference to section 59 of the Act which provides that the Anti-Discrimination Commissioner may permit certain discriminatory conduct to redress the effect of past discrimination, the Committee notes that the Commissioner has received a small number of requests concerning programmes to promote equality of indigenous people and women in employment and occupation under section 59, but declined them, taking the view that the programmes in question in fact were special measures within the terms of section 57. The Government is asked to continue to provide information on the implementation of programmes promoting employment equality of women and aboriginal employees and the practical effects of these programmes.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. With reference to its previous comments expressing concern about certain measures taken or announced by the Government which, in the Committee’s view, may have an impact on the role and functioning of the national human rights and equality policy and machinery, the Committee notes the Government’s statement that the reduction in funding for the Human Rights and Equal Opportunities Commission did not reflect any lack of commitment to human rights, but primarily was a consequence of the High Court’s decision in Brady v. Human Rights and Equal Opportunities Commission. This decision led to the transfer of the Commission’s hearing functions to the Federal Court and the Federal Magistrates Service under the Human Rights Legislation Amendment Act 1999 (HRLAA), which came into effect on 13 April 2000. As a result, the Commission is no longer able to determine complaints alleging unlawful discrimination under the Racial Discrimination Act, the Sex Discrimination Act, and the Disability Discrimination Act, but only to engage in conciliation. Matters that cannot be conciliated or terminated for other reasons in the course of Commission proceedings can now be brought before the Federal Court or the Federal Magistrates Service for an enforceable decision. Noting from the Government’s report that there has been no significant change in the number of complaints received by the Commission following the transfer of the hearing function, the Committee requests the Government to continue to provide information on the functioning of the arrangements introduced by the HRLAA, including the number and nature of cases concerning discrimination in employment and occupation brought before the Commission and the Federal Court or the Federal Magistrates Service respectively, and their outcomes.

2. The Committee also notes that the HRLAA centralizes the statutory powers to handle complaints in the office of the Commission’s President and that the Human Rights Legislation Amendment Bill (No. 2) 1999, which is currently awaiting debate by the Senate, would make education and dissemination of information on human rights the central functions of the Commission. Hoping that the Commission’s capacity to investigate and conciliate complaints will be maintained to the fullest extent, the Committee asks the Government to keep it informed of the status of this legislative initiative and to provide a text of the Bill as soon as it is adopted.

3. As regards the situation concerning equality of women in employment, the Committee notes that, as announced previously by the Government, the Affirmative Action (Equal Opportunity for Women) Act, 1996 was replaced by the Equal Opportunity for Women in the Workplace Act, 1999. Under the new legislation, the Affirmative Action Agency has been renamed the Equal Opportunity for Women in the Workplace Agency, which, inter alia, is charged with advising and assisting employers in the development and implementation of workplace equal opportunities programmes, issuing guidelines to employers, and undertaking research and promotional activities. The Committee also notes that the approximately 3,000 employers covered by the Act are required to report annually to the Agency on the implementation and effectiveness of their workplace equality programmes. With reference to Article 3, paragraph (a), of the Convention, the Committee notes that the requirement of consulting with each trade union having members affected by a proposed workplace programme has been replaced by a general consultation requirement according to which the employer must consult with its employees or their nominated representatives. If the Agency is satisfied that an employer has taken all reasonably practicable measures to address the issues relating to employment matters that affect equal opportunities for women, it may waive the employer’s obligation to report for a specified period. The Committee notes the Government’s statement that while emphasis on facilitation has increased under the new legislation, the sanctions of "naming" and "contract compliance" are maintained as a last resort against non-complying employers. The Committee asks the Government to provide information on the activities of the Equal Opportunity for Women in the Workplace Agency, including its reports under section 12 of the Act, and its practice concerning waiving reporting requirements and imposing sanctions. Noting that the requirements for the content of workplace programmes and the employers’ reports set out in the new Act are very broad, the Committee would be grateful to receive information on trends concerning the content of these programmes and reports, as well as on the overall impact of the Act on women’s equality in the workplaces covered.

4. Recalling its comments on the adverse situation of indigenous women and migrant women, the Committee notes from the Government’s report that the participation in employment of women born in other than the main English-speaking countries was at 44.4 per cent in 2001, compared to 60 per cent in respect to Australian-born women. According to the Government, more recently arrived migrants, including women, have had a more positive experience in the Australian labour force than those arriving in earlier periods. The Committee notes that as of February 2000 the labour force participation rate of indigenous women (42.6 per cent) remains considerably lower than for non-indigenous women (54.8 per cent). It requests the Government to continue to provide information on measures taken to ensure equality of indigenous and migrant women in the labour market, including any follow-up measures on the regional consultations held by the Government on issues of concern to migrant and refugee women during 2001.

5. Further to its previous comments on the disproportionately high unemployment of indigenous Australians, the Committee notes from the Government’s report that in May 1999 the Commonwealth Government launched the Indigenous Employment Policy (IEP) which complements mainstream employment services and the activities under the Community Development Employment Projects (CDEPs). The Committee notes that the IEP is focused on the private sector, taking into consideration indications that the employment situation of indigenous Australians is set to worsen over the next decade (indigenous population is expected to increase at double the rate of the general population) and that currently around 70 per cent of all indigenous employment is reliant on some form of public funding. The Committee notes that in August 2000 the Government received a report on welfare reform that, inter alia, underlined the need for innovative approaches to employment service delivery for indigenous peoples that are culturally appropriate and can be adapted to local circumstances. An Indigenous Community Capacity Roundtable was held in October 2000 upon the request of the Prime Minister, and in November 2000 the Council of Australian Governments announced a framework for advancing reconciliation between indigenous and non-indigenous Australians. The Committee notes that the outcomes of these initiatives were taken into account in the development of new initiatives in the area of indigenous employment announced under the 2001 budget. The Committee requests the Government to provide information on implementation and impact of the various programmes and projects to promote equal access to education, training and employment of indigenous Australians, including up-to-date statistical information.

6. The Committee notes with concern that the HRLAA abolishes the portfolio-specific commissioners of the Human Rights and Equal Opportunity Commission, including the Aboriginal and Torres Strait Islander Social Justice Commissioner. According to the Government this measure is aimed at addressing the perception that the Commission is "too focused on protecting those sections of the community for whom a specific commissioner exists". In light of the continuing inequalities in respect to the access to employment of indigenous Australians, the Committee hopes this development will not reduce the level of protection against discrimination of indigenous peoples.

7. The Committee notes that the Government did not reply to its previous comments concerning the high representation of indigenous Australians in the criminal justice and penal systems, which, in the Committee’s view, may negatively impact on their prospects for employment. The Committee reiterates its concerns over this issue and hopes that the Government will provide information on measures taken to address this problem, including measures to reintegrate indigenous offenders into society through education, training and employment.

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

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes that the National Advisory Committee was established by the Attorney-General under the Human Rights and Equal Opportunity Commission Act 1986. The functions of the National Advisory Committee include assisting in the development of a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation, as required by Article 2 of the Convention. The Committee notes that most recently, under Human Rights Legislation Amendment Bill No. 2, it has been proposed that the National Advisory Committee be abolished. Please indicate whether the National Advisory Committee has been abolished and, if so, if there is a mechanism to replace it or carry out its functions.

2.  The Committee further notes that the Human Rights Legislation Amendment Bill 1999, aims, inter alia, at embodying a legislative response to the High Court’s decision in Brandy v. Human Rights and Equal Opportunity Commission, which found that the Commission did not have the constitutional power to final determination of disputes. The Bill would centralize complaint investigation and conciliation in the Office of the President, and would transfer the hearing of unsuccessful conciliated complaints to the Federal Court for a binding and enforceable decision. The Committee recalls that in its previous comments it requested copies of the finalized code of practice; information on its dissemination and impact; and copies of the text of the Human Rights Amendment Bill, once adopted.

3.  The Committee notes that the third State of the Nation report (1995) found that in the 20 years since the passage of the Racial Discrimination Act, progress in the area of employment for Australians from a non-English speaking background was slow or non-existent (noted in the Government’s report to the United Nations Committee on the Elimination of Racial Discrimination (CERD) CERD/C/335/Add.2). The Committee notes South Australia’s adoption of the Racial Vilification Act 1996 and recalls that it noted in its 1997 direct request the Commonwealth’s adoption of the Racial Hatred Act 1995. The Committee notes that the 1996 Special Survey of equality in employment and occupation (see paragraph 168) mentions that the Australian Law Reform Commission identified the existence of racial vilification in Australia in its "Multiculturalism and the Law" report. The Committee asks the Government to provide information on efforts undertaken by other states and territories to adopt similar legislation and requests the Government to provide information on the number of cases presented to the courts alleging racial discrimination in employment and occupation or racial vilification in the workplace.

4.  The Committee notes that the National Aboriginal and Torres Strait Islander Education Policy (AEP), which came into effect 1 January 1990, sets out 21 long-term goals with the objective of achieving educational equity for indigenous Australians by the year 2000. In particular, the AEP establishes as the standard for indigenous Australians the level of educational access, participation, and outcomes achieved by non-indigenous Australians. The Committee requests that the Government provide information, and statistics and reports if available, on the progress of the AEP in achieving these goals, particularly that of achieving the level of educational access, participation and outcomes enjoyed by non-indigenous Australians.

5.  The Committee notes that no statutory right to an interpreter in federal tribunals exists in Australia. The Committee expresses its concern over how this situation may affect complaints made by Aboriginal and Torres Strait Islander people and people from a non-English-speaking background under the Racial Discrimination Act and the Workplace Relations Act. The Committee asks the Government to provide information in this regard and to consider creating a statutory right to an interpreter in these tribunals.

6.  The Committee notes that the Sexuality Discrimination Bill was introduced into the Senate on 29 November 1995. If enacted, it would afford protection against discrimination on the basis of sexuality and transgender identity in a number of areas governed by Commonwealth law, including Commonwealth employment. Please indicate whether this legislation has been adopted, and provide copies of the final text.

7.  Western Australia.  The Committee notes that the report indicated an environment characterized by a growing number of complaints concerning discrimination on the basis of race. The Committee notes with interest that various publications on racial discrimination in the workplace were distributed throughout Western Australia. The Committee requests the Government to indicate whether the rise in complaints indicates a higher incidence of racial discrimination or better knowledge of the procedures; and to provide information on what, if any, impact these publications and other measures may have had on the number of complaints concerning discrimination on the basis of race.

8.  New South Wales.  The Committee notes that the New South Wales government has promised to amend the Anti-Discrimination Act to prohibit discrimination on the ground of family responsibilities and has committed to amend legislation to provide long-term casual employees with access to unpaid maternity leave. The Committee requests the Government to provide information on the adoption and implementation of this legislation when it becomes available and to provide copies of the relevant legislation, if available.

9.  Northern Territory.  The Committee notes with interest the development of staff development programmes aimed at improving equality of employment opportunity for women and Aboriginal people in the Northern Territory public sector to address the disproportionate lack of women and Aboriginal employees in supervisory and more senior levels in the public sector. The Committee requests that the Government provide information and statistics concerning the practical effects of these programmes in improving the representation of women and Aboriginal employees in higher levels of the Northern Territory public sector.

10.  South Australia.  The Committee notes with interest the proclamation of the Racial Vilification Act 1996 on 6 July 1998 and the Equal Opportunity (Sexual Harassment) Amendment Act 1997, which came into force on 20 April 1998. The Committee also notes the implementation of the South Australian Government Wages Parity Enterprise Agreement 1999 and requests that the Government provide information in its next and future reports on the progress of achieving equitable wages in employment.

11.  Tasmania.  Recalling that, for some years, the Government’s report contained no information on the legislation and practice in Tasmania, the Committee notes the information contained in the report on the law and practice in Tasmania and requests the Government to continue providing such information in future reports.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

1.  The Committee notes the Government’s detailed report and the voluminous documentation attached. It notes with interest such publications as the Guide to Preventing Race Discrimination and Racial Harassment in the Workplace published by the Commissioner for Equal Opportunity of Western Australia, and the different initiatives taken at state and federal levels to combat discrimination on the grounds covered by the Convention.

2.  In its 1997 direct request, the Committee expressed its concern over the replacement of the Commonwealth Employment Service with the Commonwealth Service Delivery Agency (operating as "Centrelink") and the restructuring of the Office of the Status of Women. The Committee notes the information provided in the report concerning women’s policy development, consultation, improvements for women in employment and vocational education and training, women in decision-making, women’s wages, employment assistance, and workplace relations. The Committee also takes note of the information provided on the participation rates of Aboriginal women and women from non-English speaking backgrounds in employment and vocational education and training. Regarding action to eliminate gender discrimination, the Committee had expressed concern about reductions in funding for the Office of the Status of Women and the Human Rights and Equal Opportunities Commission; the weakened role of national machinery in providing policy advice on equality issues and in monitoring the effective implementation of such policies; and the continuing adverse situation of Aboriginal and Torres Strait Islander women and of migrant women, whose situation was further compounded by an apparent rise in racism and xenophobia. The Committee also notes the stated intention of the Government to rename the Affirmative Action Act as the Equal Opportunity in the Workplace Act and to emphasize merit, replace the union consultation requirement with a general statement of support for consultation and emphasize a facilitative rather than a punition approach to compliance. The Committee asks the Government to continue providing information regarding what, if any, impact these measures are having on the effective elimination of the discrimination experienced by women in general, and by indigenous and migrant women in particular, in all of the areas covered by the Convention.

3.  The Committee takes note of the different programmes that the Government has implemented to improve educational and employment opportunities for indigenous Australians, including the ABSTUDY income assistance scheme; the National Aboriginal and Torres Strait Islander Education Policy (AEP); the Indigenous Education Direct Assistance Program (IEDA); the measures directed at indigenous Australians through the National Strategy for Vocational Education and Training; and the Community Development Employment Projects Scheme (CDEP). The Committee notes that the indigenous population is growing by more than 2 per cent per annum while the indigenous employment rate is growing at a rate less than 1 per cent per annum, and that lack of job skills and of local employment opportunities are two of the main causes of indigenous unemployment. The Committee requests the Government to provide information concerning the practical impacts and achievements of these educational, training, and employment programmes, especially in light of the unprecedented expansion that the Government acknowledges must take place in indigenous employment. The Committee expresses its concern over the continued high unemployment rate for indigenous Australians (23 per cent compared with 9 per cent for the total population) and notes from the Government’s recent report to the United Nations Committee on the Elimination of Racial Discrimination (CERD) that without CDEP, the current indigenous unemployment rate would be about 40 per cent. (CERD/C/335/Add.2). The Committee notes also from the same report that the objective of the CDEP scheme was changed on 1 July 1998 to focus more on the provision of work and skills acquisition, and requests the Government to provide information on how this change is affecting employment opportunities for indigenous Australians. The Committee requests the Government to indicate in its next report the progress made in achieving more equality in opportunity and treatment for indigenous Australians.

4.  In this connection, the Committee notes the Federal Government’s announcement of its intention to restructure the Human Rights and Equal Opportunity Commission by replacing five of the six existing commissioners with three deputy presidents. One of these deputy presidents will have general responsibility for the areas of race discrimination and social justice, but the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner would no longer exist (CERD/C/335/Add.2). Please evaluate the impact this decision might have on the employment and occupational opportunities of indigenous Australians.

5.  In its 1995 direct request, the Committee expressed the hope that future reports would indicate progress concerning the Government’s initiative for implementing the recommendations of the Royal Commission into Aboriginal Deaths in Custody. The Committee notes the establishment of the Vocational and Educational Guidance for Aboriginals Scheme (VEGAS), which provides grants to conduct projects for indigenous Australian prisoners which foster positive attitudes towards participation in education, and the Employment and Training Transition Project (ETPP), which aims to make employment, education, and training opportunities more accessible to indigenous offenders in the immediate post-release period (CERD/C/335/Add.2). Nevertheless, the Committee expresses its concern over what the Government itself has described as the continuing disproportionately high representation of indigenous Australians in the criminal justice and penal systems and how this may negatively impact on their prospects for employment. The Committee also notes the Government’s acknowledgement that the serious socio-economic disadvantage suffered by indigenous Australians is a major factor in their over-representation in the criminal justice system, and that this increasing over-representation needs to be addressed with an integrated and sustained effort by all Australian governments. The Committee requests the Government to continue to provide information concerning the development and implementation of policies and programmes to address the high incidence of indigenous Australians in the criminal justice and penal systems, and the practical effects of measures taken to reintegrate indigenous offenders into society through education, training, and employment programmes. The Committee expresses particular concern, in this connection, over the concluding observations made by CERD in its March 2000 report, which found that the minimum mandatory sentencing schemes with regard to minor property offences in Western Australia and the Northern Territory appear to target offences that are committed disproportionately by indigenous Australians, especially in the case of juveniles. The Committee expresses its serious concern over the negative impacts that these mandatory sentencing schemes may have on indigenous youths’ opportunities for education and employment.

6.  The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes with interest the detailed report and annexed information furnished by the Government.

1. The Committee notes the numerous legislative changes at the federal and state levels which have a bearing on the application of the national policy to promote equal opportunities and treatment in employment pursuant to the Convention. In particular, the Committee notes: the Workplace Relations Act, in force on 1 December 1996 (which aims at promoting economic prosperity and welfare of the people by "respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin" (section 3(j)) and which assigns to the Australian Industrial Relations Commission (AIRC) the power to prevent and settle industrial disputes having regard to, inter alia, the need to prevent and eliminate discrimination on these grounds (section 88B(3)(e)); the Racial Hatred Act, 1995, which inserted into the Racial Discrimination Act of 1975, provisions to render unlawful public acts (including those performed in workplaces) which are likely to offend, insult, humiliate or intimidate because of another person's race, colour or national or ethnic origin; and the Sex Discrimination Amendment Act, 1995, which introduced into the 1984 principal Act, a new definition for indirect discrimination and a "reasonableness" defence, which places on the respondent the onus of establishing that the requirement or condition imposed on the complainant was reasonable in the circumstances.

2. The Committee also notes that a code of practice is being elaborated to give practical guidance to help employers, trade unions, employment agencies and employees understand the provisions of the Racial Discrimination Act and explain how they can implement policies to eliminate racial discrimination, harassment and vilification and enhance equality of opportunity. In addition, it notes that the Human Rights Amendment Bill, 1997 (currently before Parliament), aims, inter alia, at embodying a legislative response to the High Court's decision in Brandy v. Human Rights and Equal Opportunity Commission (referred to in the previous direct request), which found that the Commission did not have the constitutional power to determine disputes finally. The Bill would centralize complaint investigation and conciliation in the Office of the President of the Commission and simplify a number of procedural and enforcement aspects. Please provide copies of the finalized code of practice and furnish information on its dissemination and, eventually, its impact. Please also provide copies of the text of the Human Rights Amendment Act, once adopted.

3. In addition to this legislative movement, the Committee is aware of a number of changes in relation to agencies charged with implementing the national policy on equality of opportunity and treatment in employment. It notes that the Commonwealth Employment Service (CES), whose review of operations for the better implementation of the Sex Discrimination Act had interested the Committee (see previous direct request), has been replaced with a new agency -- the Commonwealth Service Delivery Agency, operating as "Centrelink" -- which was due to be fully operational by December 1997. According to the report, "Centrelink" aims to provide integrated delivery points for the range of services delivered previously by the CES and the Department of Social Security. The Committee notes with interest that providers of the services will be contractually obliged to deliver those services free from sexual harassment and from any other unlawful discrimination that would contravene, inter alia, the legislation proscribing discrimination on the grounds of sex, disability or race. The Committee also notes that as a result of the 1993 Review of Government Policy Mechanisms on the Status of Women, the Office of the Status of Women (OSW) was re-structured in 1996 to strengthen its capacity to provide strategic, coordinated and well-researched policy advice within the Office of the Prime Minister. The OSW has also instituted a more effective consultation process with women on priority issues, through holding regular round table meetings with organizations of particular relevance to women. Regarding action to eliminate gender discrimination, the Committee notes, however, the concern expressed by the United Nations Committee on the Elimination of Discrimination Against Women (CEDAW) in its concluding comment on the Government's report to that Committee which states:

The Committee was concerned about the Government's apparent shift in attention and commitment to the human rights of women and the achievement of gender equality. Indications such as the cut by 38 per cent in the budget of the Office of the Status of Women and a similar reduction of funding for the Human Rights and Equal Opportunities Commission gave rise to concern. While increased efforts at gender mainstreaming into all sectoral areas were commendable, the Committee was concerned about the weakened role of national machinery in providing policy advice on equality issues and in monitoring the effective implementation of such policies ... The Committee was concerned at the continuing adverse situation of Aboriginal and Torres Strait Islander women ... Their situation, as well as that of migrant women, was further compounded by an apparent rise in racism and xenophobia. (United Nations document A/52/38/Rev.1 of 1997.)

The Committee asks the Government to provide information to illustrate that the measures being taken are having a significant impact on eliminating the discrimination experienced by women, in general, and by indigenous and migrant women, in particular, in all of the areas covered by the Convention.

4. With regard to Article 3 of the Convention, the Committee notes that the Workplace Relations Act provides for the making of collective agreements approved by the AIRC, called "certified agreements", which the AIRC must refuse to certify if it considers that a provision of the agreement discriminates against an employee covered by the agreement on any of the same grounds listed in section 3(j) of the Act (set out in paragraph 1 above). The Act also provides for the conclusion of individual agreements called Australian Workplace Agreements (AWAs), approved by the Employment Advocate. In this regard, the Committee notes that Schedule 8 to the Regulations under the Act states that parties to AWAs agree that they intend to achieve the principal object set out in section 3(j) of the Act. As the Act does not appear to establish a procedure for individuals or their representatives to gain access to information on the types of terms and conditions of work set out in AWAs, the Committee requests the Government to indicate whether there are ways for interested persons or organizations, such as trade unions, to have access to factual information of this nature (perhaps directly from the Employment Advocate) in order to advise their members. Please also indicate whether specific measures have been taken to suggest how equality of opportunity and treatment may be promoted within the context of AWAs and advise on any action taken by the Employment Advocate in this respect.

5. In its previous direct request, the Committee had asked for information on progress in the review to remove discriminatory provisions from federal awards, being undertaken by virtue of section 150A(2)(b) of the Industrial Relations Act, 1988. In this regard, the Committee notes that proceedings were brought against the Commonwealth Government by the States of Victoria, South Australia and Western Australia seeking declarations that certain provisions of the Act allowing for the imposition of obligations on employers with respect to a number of principles enunciated in ratified ILO Conventions, including non-discrimination in employment, were invalid. The High Court, in a decision of 4 September 1996, largely upheld the challenged provisions, on the basis that the Commonwealth Government has the power to legislate on these matters under its external affairs power of the Constitution (section 51). Although section 150A(2)(b) was repealed by the Workplace Relations Act, the Committee notes that the new legislation contains a range of provisions intended to prevent and eliminate discrimination in awards. In particular, the Committee notes that section 89A(8) of the new Act allows the AIRC to include a model anti-discrimination clause in awards. Please provide information about the extent to which the AIRC has used its power to include model anti-discrimination clauses in awards and on the extent to which the AIRC has set aside or varied awards referred to it by the Sex Discrimination Commissioner (section 113 of the Workplace Relations Act).

6. Tasmania. The Committee notes with regret that for some years, the Government's report has contained no information on the legislation and practice in Tasmania. It has, however, been able to note, from the copy at its disposal of the 1996 Annual Report of the Tasmanian Sex Discrimination Commission, the activities of the Commission in regard to the receipt, investigation and resolution of complaints (the majority of which concerned discrimination in employment), and the efforts undertaken to provide education and information about the Sex Discrimination Act, 1994. The Committee urges the Government to ensure that its next report contains information on the legal and practical implementation of the Convention in all jurisdictions.

7. Queensland. The Committee notes the enactment of the Workplace Relations Act on 27 March 1997, which reflects in many respects the federal legislation of the same name, including those provisions designed to prevent discrimination. Noting that the State Act contains certain exemptions from unlawful dismissal, including an exemption for employees during the first 12 months of their employment who are employed by an employer with 15 or fewer employees, the Committee requests the Government to provide information on the means of redress available under the Act to persons with less than 12 months service in small enterprises who consider themselves dismissed for discrimination which contravenes the Queensland Anti-Discrimination Act, 1991.

8. Australian Capital Territory (ACT). The Committee notes with interest that the Convention was one of the elements taken into account in the 1996 amendment of the Discrimination Act, 1991. It also notes that the ACT Government, in conjunction with the ACT Human Rights Office has commenced a review of all ACT legislation to determine compliance with the discrimination legislation. Please provide information on the progress and outcome of this review.

9. South Australia. The Committee notes with interest the enactment of the Racial Vilification Act, 1996 (yet to be proclaimed), and the introduction into Parliament of the Equal Opportunity (Sexual Harassment) Amendment Bill, 1997, which proposes to extend the sexual harassment provisions of the principal legislation to judicial officers, Members of Parliament and members of local councils. It also notes the instigation of two projects, the Community Outreach Project -- which aims to ensure that targeted minority communities have access to information about their rights and responsibilities under equality legislation -- and the Police Department Project which aims at training police in the area of equal opportunity legislation. The Committee hopes that further information will be provided on these various initiatives, more particularly to illustrate the practical impact of the measures being taken.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes with interest the information provided in the report on the measures being taken to further the application of the Convention, not only at the federal level but also at the level of the States and territories.

1. The Committee notes the October 1994 decision of the Australian Industrial Relations Commission (AIRC) to include in a number of awards, a model clause which makes provision for the operation of the Supported Wage System - which facilitates the employment of workers with disabilities in the open labour market and protects them from exploitation. Having noted that other federal awards are being varied progressively to include the provisions and that, with the Government's encouragement, all States (except Western Australia) have adopted arrangements to enable the operation of this new system, the Committee requests the Government to provide data, when available, indicating the extent to which this measure has achieved its objective.

2. The Committee notes that, pursuant to section 150A(2)(b) of the Industrial Relations Act 1988, the AIRC has been undertaking a review of federal awards to remove discriminatory provisions and to encourage best practice approaches in human resource management to avoid both direct and indirect discrimination in the operation of awards. In this regard, the Committee notes that the Human Rights and Equal Opportunity Commission contributed to the review by preparing reports on both direct and indirect discrimination in federal awards. The Committee asks that the Government furnish information on the progress of the review.

3. The Committee requests the Government to provide information on the measures taken to implement the recommendations of the 1995 review conducted of the Commonwealth Employment Service operations, with the aim of better achieving the objectives of the Sex Discrimination Act, 1984. Please also provide information on the action taken with regard to any of the other recommendations made pursuant to the review of government policy advice mechanisms on the status of women, the outcome of which was announced by the Prime Minister in October 1993.

4. The Committee notes the information contained in the first and second reports (1993 and 1994) of the Aboriginal and Torres Strait Islander Social Justice Commissioner. The Committee notes, in particular, that pursuant to a recommendation made by the 1991 Royal Commission into Aboriginal Deaths in Custody, the Office of the Commissioner has developed two schemes: the National Community Education Programme (NCEP) and the National Legal Field Officer Training Programme. Noting from the above-mentioned reports that difficulties are being experienced in implementing the NCEP - which appear to derive from, amongst other things, the reduced funding of anti-discrimination and equal opportunities agencies at the State and territory levels - the Committee hopes that future reports will indicate progress concerning this important initiative.

5. The Committee notes the decision of the High Court on 23 February 1995 in the case of Brandy v. Human Rights and Equal Opportunity Commission and Others which held that the provisions of the Racial Discrimination Act 1975 that had allowed the Human Rights and Equal Opportunities Commission to register it determinations with the Federal Court so that they may be enforced as orders of the Court, were invalid as they purported to invest judicial power in the Commission. According to the report, the result is that the actual determinations (including interim determinations) of the Commission under the Racial Discrimination Act, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Privacy Act 1988, are valid but, without the registration and enforcement mechanism, they are not binding or conclusive and cannot be enforced, except in the case of determinations made against Commonwealth agencies. The Committee has also noted the Attorney-General's intention to respond to the High Court decision, which involved amending the Human Rights Legislation Amendment Bill 1994 (subsequently assented to in June 1995) so as to restore the process by which, in the case of non-compliance with the Commission's determination, the Commission could commence proceedings in the Federal Court seeking an order for enforcement. In such situations, the Court would re-hear the matter. In addition, a longer-term solution would be developed by the Review Committee, which is reviewing the role and functions of the Commission. Noting that this Review Committee is expected to report to the Government on the issue by the end of 1995, the Committee requests the Government to provide information on the measures taken in this matter.

6. With reference to its previous observation, the Committee notes the Government's statement that, as the provisions of the Industrial Relations Act, 1988 are of limited application concerning discrimination on the ground of age, because they are confined to termination at the initiative of the employer, the Government is reviewing the use of age-based distinctions in its own policies and programmes with a view to possible legislative and non-legislative action in the future. Please furnish information on any action taken in this regard.

7. The Committee notes with regret that no information has been provided concerning the application of the Convention in Tasmania. It hopes that the relevant information will be provided in future reports.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes with interest the detailed report and annexed documentation provided by the Government on the application of the Convention.

I. Federal level

1. Referring to its previous direct request, the Committee notes the information provided in relation to the Sex Discrimination Act, 1984, including the reduction of the Act's former blanket exemption of superannuation and provident fund schemes (effected by the Sex Discrimination Amendment Act, No. 71 of 1991). The Committee requests the Government to provide information on the practical application of the amendments relating to superannuation, together with information on the outcome of the project to investigate approaches to actuarial-based discrimination in insurance and in superannuation, being funded by the Sex Discrimination Commissioner and the Association of Superannuation Funds of Australia. The Committee also notes that the Sex Discrimination and Other Legislation Amendment Act, 1992, inserted into the Sex Discrimination Act (as section 50A) a procedure to deal with complaints of discrimination under federal industrial awards and enterprise agreements made or varied after January 1993. In addition, section 150A of the Industrial Relations Act, 1988, now provides that all awards must be reviewed every three years; if the award contains a provision which discriminates against an employee because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, the Industrial Relations Commission must remedy the deficiency (effected by the Industrial Relations Reform Act, No. 98 of 1993). The Committee requests the Government to continue to provide information pertinent to the Convention as concerns both the use made of the procedure outlined in section 50A of the Sex Discrimination Act and the review of federal awards. The Committee also requests the Government to provide information on the adoption of the proposed amendments to the Sex Discrimination Act, announced by the Prime Minister in July 1994.

2. The Committee notes that, according to the Government's report, since November 1992, the Australian Defence Force (ADF) has not discriminated against its members on the ground of sexual preference, considering, in this regard, that it is not concerned with a member's private activities so long as those activities are lawful and do not compromise operational effectiveness. The Committee requests the Government to provide information on the outcome of the current review of the Defence Instruction on "Unacceptable Sexual Behaviour by Members of the Australian Defence Force".

3. The Committee notes with interest the detailed information concerning the activities of the Human Rights and Equal Opportunity Commission (the Commission), which is responsible for implementing the Human Rights and Equal Opportunity Commission Act, 1986, the Racial Discrimination Act, 1975, the Sex Discrimination Act, 1984, and the Disability Discrimination Act, 1992. It also notes that the Privacy Commissioner, who is a member of the Commission, is responsible for implementing the Privacy Act, 1988; and that the Aboriginal and Torres Strait Islander Social Justice Commissioner (appointed under the Act in 1992, in response to a recommendation of the 1991 Royal Commission into Aboriginal Deaths in Custody) performs a number of functions under the Native Title Act, 1993, including the obligation to prepare and submit to the Federal Minister, a report on the operation of the Act and on its effect on the exercise and enjoyment of human rights by aboriginal peoples and Torres Strait Islanders. The Committee requests the Government to provide copies of these annual reports, as they become available. Noting the statistical breakdown of complaints of racial discrimination provided in the Government's report to the UN Committee on the Elimination of Racial Discrimination (UN document CERD/C/223/Add.1 of 23 September 1993), it requests the Government to provide information on the number and type of complaints made to the Commission on the other grounds of the Convention, including, if available, details on the ways in which these complaints were resolved.

4. In addition, the Committee notes the information provided on the measures taken by the Commission to ensure gender equality in the meat processing industry in Queensland, where about one-third of the workers are women. In a submission to the Industry Commission's Inquiry into the industry, it highlighted the need to examine workplace practices in terms of the cost of discrimination to the efficiency and effectiveness of the industry. The Committee requests the Government to provide a copy of the final report of the Industry Commission.

5. The Committee notes that the existence of racial vilification was identified by the National Inquiry into Racist Violence, the 1991 Royal Commission into Aboriginal Deaths in Custody, and the Australian Law Reform Commission in its report on Multiculturalism and the Law. As a result, a public consultation process was instituted concerning proposed legislation and an extensive media campaign was launched in order to prepare the Racial Hatred Bill, expected to be adopted in 1995. In addition to furnishing a copy of this legislation, the Committee requests the Government to provide information on any practical action taken to promote equality of opportunity and treatment for persons from non-English speaking backgrounds, whose employment situation was examined in a 1993 report of the Race Discrimination Commissioner and described as one of continued marginalization.

6. Recalling the Affirmative Action Agency's 1992 review of the Affirmative Action (Equal Employment Opportunity for Women) Act, 1986, the Committee notes that the Act has been extended to cover community organizations, non-government schools and group training schemes, but that no extension was made as concerns the Acts's application to employers of 100 employees. The Committee notes with interest that a policy of contract compliance has now been introduced under the Act. The Committee requests the Government to continue to provide information on the Agency's activities, including the development of performance standards, introduced so as to improve the quality of affirmative action programmes.

7. The Committee also notes with interest the information provided by the Government concerning the reforms impacting upon women's access to and participation in the labour market and, in particular, those arising from the White Paper on Employment and Growth, released in May 1994. It requests the Government to provide information on how these proposed measures (such as changes to income support; partner and parenting allowances; labour market assistance; expansion of access to vocational education and training) will facilitate women's entry or re-entry into the labour market.

II. States and territories

8. The Committee notes with interest that section 54 of the New South Wales Anti-Discrimination Act, 1977, has been amended to provide that any state industrial awards or enterprise agreements negotiated after August 1994 must be free of discriminatory terms and conditions. In addition, those awards or agreements that were in existence prior to that date must comply with the proscription against discrimination by August 1995. Noting that the ground of political opinion appears to have been excluded from the amendment, the Committee requests the Government to provide information on the way in which protection is afforded against this type of discrimination. The Committee notes that the exemptions granted under section 126 of the Act relate to positive measures taken in favour of women. Noting the information concerning the employment programmes administered by the state Department of Industrial Relations, Employment, Training and Further Education, the Committee requests the Government to provide information on the results or evaluation of those programmes.

9. The Committee notes with interest the amendments made to the Queensland Industrial Relations Act, 1990, to maintain consistency with the provisions of the federal Industrial Relations Act concerning discrimination and to ensure, through a three-yearly review, that no awards or agreements will either contain discriminatory provisions or will be covered by the exemption under the Anti-Discrimination Act, 1991. It requests the Government to provide information concerning the review of awards and industrial agreements under section 150 of the state legislation. The Committee also notes with interest the information provided on the Public Sector Aboriginal and Torres Strait Islander Employment Strategy, which encompasses all government employment - local, State and Commonwealth. The Committee would be grateful if the Government would provide information on the implementation of the Strategy in its future reports, including details on any evaluation of the Strategy.

10. The Committee notes from the Government's report that three new grounds (age, occupation, and membership of associations of employees or employers) have been added to the Australian Capital Territory Discrimination Act, 1991. The Committee notes the Government's explanation that the exemption under section 24 of the Act (mentioned in the previous direct request) concerns only the recruitment of workers to carry out domestic duties in the employer's premises and that, in all other respects, domestic workers enjoy the full protection of the legislation. Noting that the review of the Territory's laws, pursuant to section 111 of the Act, is expected to be completed by the end of 1995, the Committee requests the Government to provide full information on this matter in its next report.

11. The Committee notes with interest that the principal legislation now governing industrial relations in South Australia, the Industrial and Employee Relations Act, 1994, states that the Industrial Relations Commission must refuse to approve an enterprise agreement if a provision of the agreement discriminates against an employee because of, or for reasons including, race, colour, sex, sexual preference, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin (section 79(2)). The Committee requests the Government to provide information on the application of the Act in implementing the Convention. It also requests the Government to furnish copies of any reports issued by the Multicultural and Ethnic Affairs Commission (including information on the progress of the Multicultural Management Commitment Plan) and by the Equal Opportunity Commission.

12. Referring to its previous direct request, the Committee notes with interest that 1992 amendments to the Equal Opportunity Act, 1984, have included in the definition of discrimination, the grounds of family responsibilities or status and racial harassment and expand the provisions relating to sexual harassment. The Committee also notes that it is now possible for employees to appeal to the Equal Opportunity Tribunal regarding discriminatory provisions in awards or legislative texts. The Committee requests the Government to provide a copy of the Equal Opportunity Amendment Act, 1992, and to continue to provide information on the application of the equality legislation, including details on the type of complaints made to the Commission and the follow-up action taken.

13. With reference to its previous direct request, the Committee notes the information provided concerning the type of exemptions granted under section 40(1) of the Victorian Equal Opportunity Act, 1984, which concern, for the most part, programmes to maintain or implement gender balance in employment and to enable the employment of either men or women in particular roles, as allowed by Article 1, paragraph 2, of the Convention. Having noted the 1993 report of the review of the Act, the Committee requests the Government to indicate the action being taken in response to the recommendations of the Scrutiny of Acts and Regulations Committee.

14. The Committee notes with interest the information concerning the measures taken in the Northern Territory to apply the Convention, including the Public Sector Aboriginal Employment and Career Development Strategy and the Intellectual Impairment Employment Programme in the public sector. It requests the Government to provide details on the implementation of these initiatives and to furnish information on the implementation of the policy on communicable diseases in the workplace, together with a copy of the policy.

15. With regret, the Committee notes that, once again, no information has been provided concerning the application of the Convention in Tasmania. The Committee hopes that full details will be provided on the implementation of the Convention, in law and in practice, in the next report.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. The Committee notes with satisfaction that helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin, is now included as one of the objects of the industrial relations legislation for the prevention and settlement of industrial disputes (section 3(g) of the Industrial Relations Act, 1988, as amended by the Industrial Relations Reform Act, 1993). In addition, the Committee notes that Division 2 (Equal Remuneration for Work of Equal Value) of Part VI A of the Industrial Relations Act, as amended by the 1993 Reform Act, provides that the object of the Division is to give effect to or further the effect of certain anti-discrimination Conventions, including ILO Conventions Nos. 100 and 111 (section 93A of the Act obliges the Industrial Relations Commission to take account of the principles embodied in Convention No. 156). The texts of these ILO Conventions and their accompanying Recommendations are set out in the schedule to the Act (apart from the text of Convention No. 111 which, as the Industrial Relations Act notes, was already included in the schedule to the Human Rights and Equal Opportunity Act, 1986).

2. The Committee also notes with interest that a National Advisory Committee, comprising high-level representatives of the Human Rights and Equal Opportunity Commission, the federal and state governments, the Australian Council of Trade Unions, the Business Council of Australia, the Australian Chamber of Commerce and Industry and various community and interest groups, was established by the federal Attorney-General in 1993 to advise the Commission on the performance of its functions in relation to equality in employment and to advise the Attorney-General, as requested, on the action that should be taken to comply with the Convention.

3. The Committee is addressing a request directly to the Government on other points.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

Referring to its previous direct request, the Committee notes the detailed information and documentation supplied by the Government.

I. Federal level

1. The Committee would be grateful if the Government would provide information on the practical application of the Sex Discrimination Amendment Act, No. 71, 1991.

2. The Committee notes that industrial awards remain exempt from the coverage of the Sex Discrimination Act, 1984, and that permanent exemptions under the Act, including awards, have been reviewed with a view to determining which exemption, if any, should be allowed to remain. It further notes that the Australian Industrial Relations Commission is not bound by the Sex Discrimination Act, although it is required to take account of the principles embodied in the Act. The Committee would be grateful if the Government would provide information on the outcome of the review and on any decisions taken with regard to the maintenance or removal of the exemptions, as well as any action contemplated to extend the application of the Sex Discrimination Act so as to be within the jurisdiction of the Industrial Relations Commission.

3. The Committee notes with interest the adoption, as of November 1992, of the non-discriminatory policy on "Unacceptable Sexual Behavior by Members of the Australian Defence Forces" and the removal of the former policy which had discriminated against members of the armed forces on the grounds of sexual preference. It would be grateful if the Government would keep the Committee informed of any further developments in the application of this policy.

4. With regard to enforcement of discrimination legislation, the Committee notes the expansion of the powers of the Human Rights and Equal Opportunity Commission to include the administration of the Discrimination Act, 1991, adopted in the Australian Capital Territory, and the Anti-Discrimination Act, 1991, adopted in Queensland, and requests the Government to continue to supply information on the powers and activities of the Commission, including its education and training activities to reduce discrimination in employment. In addition, the Committee notes the establishment of the Advisory Committee to the Human Rights and Equal Opportunity Commission and would appreciate receiving information on its functioning in future reports.

5. The Committee notes the undertaking of the National Inquiry into Racist Violence by the Human Rights and Equal Opportunity Commission and its findings of the existence of racism against Aborigines and Torres Strait Islanders and to a lesser extent against people from non-English speaking backgrounds. Noting that the Inquiry produced recommendations relating to the workplace, the Committee requests the Government to provide information on these recommendations and the work undertaken to implement them.

6. The Committee notes the continued implementation of the Affirmative Action (Equal Employment Opportunity for Women) Act, 1986, and the activities of the Affirmative Action Agency which included a review of the effectiveness of the legislation in meeting its objectives. While the effectiveness review revealed wide support for the legislation, it also found a need for increased qualitative assessment of the affirmative action programmes reported on by employers, a need for employers to focus on particular groups of women with multiple disadvantages, as well as a concern about discrimination against women in small companies. It also recommended the introduction of contract compliance for all Commonwealth contracts. The Committee requests the Government to supply information on the action contemplated or taken to respond to the above issues raised by the review, and to indicate whether extension of the Act beyond employers with 100 or more employees is being considered.

7. The Committee notes the information provided on the development of equal opportunity programmes under the Equal Opportunity (Commonwealth Authorities) Act, 1987, and the Public Service Act, 1984, and would be grateful if the Government would continue to provide information on the progress achieved in employment under these programmes for members of the target groups and on the results of any evaluations made of the programmes' effectiveness.

8. The Committee notes the information provided on new employment education and training initiatives to eliminate gender bias and to facilitate female participation in a broader range of occupations. It requests the Government to provide information on the implementation of these initiatives and the results achieved in terms of women's increased occupational diversification.

II. States and territories

9. Regarding exemptions under the Anti-Discrimination Act in New South Wales, the Committee notes from the Government's report that the exemptions under section 126 were for a set period of years and for programmes designed to promote equality such as the Aboriginal Employment Strategy and scholarships for women. The Committee would be grateful if the Government would continue to supply such full information on the exemptions granted under this section of the Act. With respect to exemptions under section 54 of the Act, the Committee notes that proposals are under consideration to remove section 54(D), which exempts discriminatory provisions in industrial awards. It requests the Government to provide information on measures taken to amend this section and on any other exceptions provided under section 54 of the Act. The Committee also hopes the Government will provide information on the progress made in amending awards exempted under this section which contain discriminatory provisions.

10. The Committee notes that the Department of Industrial Relations, Employment, Training and Further Education has implemented employment and training programmes targeted at youth, Aboriginals, people from non-English speaking backgrounds and mature aged workers, and has adopted a gender equity strategy administered by the Women and Work Unit. It requests the Government to provide details on the types of programmes implemented, their objectives and the results achieved.

11. In Queensland, the Committee notes with interest the adoption of the Public Sector Management Commission Act, 1990 (to ensure that equal opportunity principles apply to the public sector), the Anti-Discrimination Act, 1991, and the Equal Opportunity in Public Employment Act, 1992 (prescribing that public sector units must implement equal employment opportunity plans aimed at promoting equality for: people with a disability, women, Aboriginal and Torres Strait Islanders and people from a non-English speaking background). It further notes that under the Anti-Discrimination Act, which prohibits discrimination on the grounds set out in Article 1 of the Convention, acts done in compliance with existing provisions in legislation, industrial awards or agreements are exempted from coverage of the Act. Discrimination on the grounds of race in residential domestic services and residential child care is also exempted from the Act. The Committee recalls that all employment and occupations are covered under the Convention and requests the Government to indicate what measures have been contemplated or taken to extend the coverage of the protection of the Act to the above-mentioned situations. It also requests the Government to indicate whether industrial awards or agreements concluded after the Act came into force are covered by the Act.

12. The Committee notes the development of a Queensland Public Sector Aboriginal and Torres Strait Islander Employment Strategy, including the establishment of a unit to implement the strategy. The Committee would be grateful if the Government would provide further information on the implementation of the strategy and its impact on the members of the target group including the number of people who participate and employment follow-up to the training. It also requests the Government to indicate the interaction and coordination between implementation of this strategy and the equal opportunity plans required under the Equal Opportunity in Public Employment Act, 1992.

13. In the Australian Capital Territory, the Committee notes with interest the adoption of the Discrimination Act, 1991, which prohibits discrimination in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs on the grounds set out in Article 1, paragraph 1(a), of the Convention and on the additional grounds of sexuality, transexuality, marital status, status as a parent or carer, pregnancy, impairment or association. It further notes the provisions making sexual harassment and racial vilification unlawful. The Committee notes, however, that provision of domestic duties is exempted from the Act's general coverage pursuant to section 42 and, accordingly, requests the Government to indicate the measures that have been contemplated or taken to extend the protection of the Act to such workers. It further notes the Government's statement that the exemption under section 30 of the Act concerning anything done to comply with other laws is intended to be temporary until a review of the laws of the Territory - required under section 111 - is completed. The Committee requests the Government to supply information on the carrying out of the review, its findings and any action taken as a result of those findings.

14. In South Australia, the Committee notes with interest the adoption of Act No. 68 of 1989 and Act No. 25 of 1990 both amending the Equal Opportunity Act, 1984, and which, respectively, make unlawful discrimination on the grounds of intellectual impairment, and extend the protection against discrimination to unpaid workers and extend the grounds upon which discrimination is prohibited to include age. It also notes the amendments to the Industrial Conciliation and Arbitration Act, 1972, which expand the jurisdiction of the Industrial Commission to cover independent contractors and outworkers. As women comprise a large portion of these workers, the Committee requests the Government to provide information on the impact of the new jurisdiction and on any other measures taken to improve the position of such workers in the labour market.

15. The Committee notes the efforts undertaken to promote equality of opportunity and treatment in employment and occupation, including the implementation of the Women's Employment Strategy, the Women's Industrial Entitlement Information Project, the Multicultural Management Commitment Plan and the developments in the Equal Employment Opportunity Management Plan and other projects relative to women, Aborigines, people with disabilities and people from non-English speaking backgrounds. It hopes the Government will continue to supply information on such efforts and the results achieved in future reports.

16. In Western Australia, the Committee notes the adoption of the Equal Opportunity Amendment Act, 1988, which amends the Equal Opportunity Act, 1984, to include impairment as a ground for a complaint of discrimination. In addition, it notes with interest the removal of all discriminatory provisions from public sector awards and the removal of provisions in the Pearling Act, 1956, and in the Factories and Shops Act, 1962, which discriminated against women. It requests the Government to report on the measures contemplated or taken concerning discriminatory provisions in other awards or legislative texts.

17. The Committee notes in Victoria that exemptions have been granted under the Equal Opportunity Act, 1984, to redress imbalances and/or maintain a gender balance so as to provide services for refugee women. Noting that the Law Reform Commission has recently completed an extensive review of the equal opportunity legislation, the Committee requests the Government to supply a copy of that report and to continue to supply information on the nature of the exemptions granted pursuant to section 40 of the Act.

18. The Committee notes the lack of information on Tasmania, and requests the Government to provide full details on the implementation of the Convention in law and in practice for the relevant grounds of discrimination set out in Article 1, paragraph 1, of the Convention.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes with interest the detailed information contained in the Government's reports, in particular the information on further progress achieved in implementing the Convention at both the state and federal levels.

1. In particular, the Committee notes the adoption of new federal legislation to further the implementation of the Convention: (a) the Human Rights and Equal Opportunity Commission Regulations, 1989, which declare additional grounds of discrimination for the purposes of the Human Rights and Equal Opportunity Commission Act, 1986, to be age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference or trade union activity; (b) the Law and Justice Amendment Act, 1990, which removes from the Racial Discrimination Act, 1975, the requirement that race be the dominant reason for an action to be found unlawful, introduces a vicarious liability provision and extends that Act to cover situations of indirect discrimination; (c) the Sex Discrimination Amendment Act, 1991, which replaces the previous exemption for superannuation and insurance in the principal Act with a provision exempting only such schemes as are based on reasonable actuarial or statistical data; and (d) the Disability Discrimination Act, 1991, which makes direct and indirect discrimination on the grounds of disability unlawful in a number of areas including employment, education, access to premises and the administration of Commonwealth laws and programmes and introduces a standard of unjustifiable hardship on the basis of which the Human Rights and Equal Opportunity Commission may consider cases concerning the requirement to accommodate the circumstances of people with disabilities.

2. The Committee takes note of the information supplied by the Government on the adoption of a new Equal Pay Policy in March 1992 which has the aim of ensuring that work of equal value is remunerated at an equal rate of pay, the establishment of an Equal Pay Unit within the Department of Industrial Relations and the implementation of the process of award restructuring. With regard to these new developments, the Committee refers to its comments under Convention No. 100.

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

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

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.