The role of HREOC in the industrial relations scene: recent developments and future directions

The role of HREOC in the industrial relations scene: recent developments and future directions

Address
by President John von Doussa to the South Australian Industrial Relations Society

28
August 2006

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I would like to
begin by acknowledging the Kaurna people on whose ancestral land we meet today.

The
implications of WorkChoices for HREOC

What I plan to
do tonight is to talk about the implications of the new WorkChoices laws for
HREOC - what's changed and what's stayed the same.

I'll
start with what's stayed the same. The fundamental restructuring of
Australia's workplace relations system has left the functions of HREOC
untouched. In particular there is no change in its responsibilities to
investigate and conciliate complaints of unlawful discrimination.

By leaving
HREOC's functions intact the Government has clearly recognized the
importance of protecting people in the workplace from discrimination and
unlawful termination. In the same vein, the prohibitions against unlawful
termination remain in the Workplace Relations Act
1996.[1]

While companies
with fewer than 100 employees are now exempt from unfair dismissal laws, all
businesses, regardless
of their size, must still adhere to federal
and state equal opportunity laws.

That said the
workplace relations reforms do have important implications for HREOC.
 

Firstly, in the
new workplace environment HREOC is receiving an increased number of employment
related complaints under federal discrimination laws.

Secondly, under
our education function HREOC has an obligation to provide information and
strategies to promote the acceptance of human rights in Australia. As part of
this function HREOC through mailouts and forums has been reminding employers and
employees about their rights and obligations under federal discrimination
laws.

More broadly,
from a human rights perspective we are also concerned about the impact of the
increased focus of individual bargaining on more vulnerable workers. Some of the
individual complaints we have received give us cause to be concerned that
discriminatory provisions - like bonuses for employees who take no sick or
careers leave - are creeping into workplace agreements.

There is also
evidence that women are less likely to strike strong bargains on pay than men
- research that creates real concerns about the future of pay equity.

The way these
issues are addressed will have a major impact on the capacity of Australian
workers to balance work and family life. This topic is currently occupying our
Sex Discrimination Commissioner Pru Goward and the Sex Discrimination Unit as
they prepare the Striking the Balance:
Women, men, family, work Report - a
blue print for what Governments, business, community based organisations and
policy makers can do to better help women, and men, balance their paid work and
family.

Before I
discuss some of the changes HREOC has observed about employment related
complaints, I give a brief overview of HREOC's functions.
 

HREOC's
complaint functions

HREOC is a
statutory body independent of government. While our main function is to promote
an understanding and acceptance of human rights in Australia, we are also
charged with the responsibilities of investigating, and attempting to conciliate
complaints of unlawful discrimination under the federal Racial Discrimination
Act 1975 , the Sex Discrimination Act 1984, the Disability Discrimination Act
1992 and the Age Discrimination Act 2004.

HREOC also has
similar functions that are perhaps less well understood arising under the
provisions in Part II of the Human Rights and Equal Opportunity Act 1986 (the
HREOC Act) which deal with equal opportunity in employment. These provisions
seek to implement in part Australia's obligations under the Discrimination
(Employment and Occupation) Convention 1958 (ILO Convention 111), which is a
Schedule to the HREOC Act.

Under these
provisions, HREOC can receive complaints of discrimination in the workplace on
many grounds, including religion, political opinion, medical record, criminal
record, marital status, sexual preference, or trade union activity.

The pursuit of
a remedy for alleged unlawful discrimination under one of the federal
Discrimination Acts, or for a contravention of ILO 111 must start with a written
complaint to HREOC. All complaints are initially assessed in the same way to
determine whether the complaint should be terminated as lacking in substance,
and if not, whether it is suitable for conciliation.  

While a
complainant who alleges unlawful discrimination under one of the discrimination
acts can seek remedies through the Federal Court or the Federal Magistrates
Court if conciliation fails, the ILO 111 complaints procedure does not provide
an enforceable remedy. The President merely reports to the Attorney General that
a contravention has occurred, and the report is tabled in Parliament.

Not
withstanding this limitation we still get quite a number of ILO complaints. In
the last financial year we received 87 complaints on grounds not covered by the
unlawful discrimination Acts - 34 were on the ground of criminal record,
16 on the ground of religion, and 15 on the ground of trade union
activity.

The
conciliation process

HREOC stresses
at the outset to the parties that it is not an advocate for either side. As an
independent and unbiased conciliator HREOC's goal is to resolve the
complaint in a fair and timely process with the minimum cost and stress for
either party. To this end we hold conciliation conferences anywhere Australia.
 

In recent years
there has been a continual increase in our conciliation rate: in 2005-2006 39
per cent of all complaints received were successfully conciliated. In 75 per
cent of those matters were conciliation was attempted, the matter was resolved.

A recent case
study will illustrate how the conciliation process works.

Case
Study

Jamie claimed
that he was discriminated against because of his race during his employment with
the respondent manufacturing company. The complainant alleged he was called a 'black
bastard', referred to as 'monkey' and asked "Where is
there a well developed black
country". Jamie claimed that he was
over scrutinized compared to other employees and that he eventually resigned
because of pressure put on him.

When the
complaint was received, as it appeared to fall within the ambit of the RDA, the
employer - the respondent - was asked in writing for a response.
Almost invariably responses are forthcoming, as one was in this case.

The respondent
denied that Jamie had suffered racial discrimination. While the company agreed
that one employee had called Jamie a black bastard, it claimed there was no
offence intended and an apology had been offered.

The parties
agreed to participate in a conciliation conference. Through the conciliation
process the complaint was resolved. The company agreed to pay Jamie $10,000
compensation, provide a verbal reference to prospective employees and under-take
anti-discrimination training for its staff.

You will note
that our process is investigation based. If a response is inadequate we follow
it up by phone. Before a conference we contact both sides and explain the
process, and make sure they understand the issues.  We try and make the
exercise user friendly.

When
WorkChoices was about to start, some in the media anticipated that the Equal
Opportunity Commissions would be encouraging people who had been terminated to
pursue discrimination cases - and inferred that EOCs would become
advocates for the employee cause. Our answer to that is that we survey a large
number of parties who participate in conciliation and seek their assessment of
the objectivity of the process. We consistently get percentage ratings from both
sides in the 80 -90% satisfaction bracket, and usually slightly higher from
respondents than complainants.

Of course, it
is not always possible to conciliate a complaint. If a complaint of unlawful
discrimination cannot be conciliated, it will be terminated by the President,
and the complainant then has 28 days to apply to the Court.

The example
just given was a complaint made after the employment had come to an end. It
could have been argued that there had been a constructive dismissal, and the
matter could have been pursued under the Workplace Relations Act. Had that
happened, the process there would have been similar - conciliation first,
and only if it failed would the worker have then had the option of going to
court.

But it is
important to recognize that the unlawful discrimination Acts that HREOC
administers provide remedies for discrimination where the employment
relationship is still ongoing. Indeed this is the case in many of the employment
related complaints we process. Our staff are very conscious of the need to try
and preserve the relationship.

One of the
advantages of HREOC's complaint process is that it has the potential to
result in a range of outcomes including general damages, policy changes and
apologies. Often by getting the parties to the table not only is the matter of
complaint sorted out, but the relationship is saved. Only very occasionally is
it necessary to refer to the anti-victimisation provisions in our legislation.

Another
advantage of the HREOC process relevant to termination cases is that a 21 day
time limit applies to applications to the AIRC, but there is no absolute time
limit on complaints to HREOC. The President can decline to investigate a
complaint more than 12 months old, but even then the complaint can still be
taken to Court.

Complaints
in employment related areas - recent developments and trends

One
of the most significant features of the WorkChoices legislation is that small
businesses are no longer bound by unfair dismissal laws. Legal commentators
predicted a significant increase in discrimination complaints and unlawful
termination actions.

At this stage
our expectation that there would be an increase in the number of employment
related complaints is proving correct.

Employment is
always the main area of complaint under federal anti-discrimination legislation.
Since April 2006 started we have seen a significant increase in the number of
employment related complaints- most notably under the Disability
Discrimination Act and the Racial Discrimination
Act.

In April-June
HREOC 2005 received 170 complaints related to employment including 26 where the
complainant had been dismissed. In the same period this year the number of
complaints has risen to 278 complaints relating to employment including 126
where the complainant had been dismissed.  

This is a 63
per cent increase in employment related complaints.

We are also
receiving many more enquiries from employers and employees about their rights
and obligations under federal discrimination laws.  

We are seeking
to educate both employers and employees about their obligations and rights in
the new WorkChoices regime. Our web site has separate sections for each group.
 

Employers are
encouraged to create a discrimination and harassment free environment through
our 'Good practice, good business guide'.

Employees can
obtain information about their rights under discrimination law on our
'Work out your rights' website.  

Our complaints
handling section is also holding information sessions for employers, employees
and their representatives on what constitutes unlawful discrimination and the
HREOC complaints process.

The
impact of increasing individual bargaining on vulnerable workers

The
type of complaints we are investigating in the post WorkChoices environment
suggest that while most employers know that direct discrimination in the
workplace is unlawful, the concept of indirect discrimination is not as well
understood.[2]  

Of
course, indirect discrimination is not a new problem. But as people move away
from collective bargaining we are concerned about the type of provisions that we
are seeing in some Australian Workplace Agreements.

Let's
take for example a complaint from Susan who was dismissed after four months in a
new job for 'misconduct' -  for taking two days leave, one to
attend a funeral and another to care for her sick child, and for being
'difficult about putting in extra hours'.

Her
workplace agreement indicated she would be expected to work 'standard
hours of work' and that the 'company leave policy' would
apply.  However, that policy did not allow any leave in the first 12 months
of employment. After a year in the job she could take leave but only if she gave
four weeks notice and took a leave for a minimum of one week.

The
company's standard work hours were 9-5 and the complainant asked for any
meetings that she was required to attend finish by 5:30 so she could pick her
son up from child care.

Despite
this request Susan was frequently asked to attend meetings outside of standard
work hours; a practice which increased her child care fees and jeopardized her
place with the child care centre.

Provisions
like this appear to be discriminatory against women on the ground of sex for the
very reason that women are much more likely to be affected by this type of
requirement than men - women in our society carry the main responsibility
for looking after
children[3].

A
complaint from Nathan, who suffers from epilepsy, illustrates the types of
provisions that are presenting problems for people with disabilities.
Nathan's epilepsy is well controlled but still occasionally requires him
to have a day of work. This meant that when Nathan's employer introduced a
policy which excluded anyone from taking unplanned leave from bonuses this
provision appears to have a discriminatory effect on Nathan, as compared to
other employees.  

These
examples present important issues - both for the Office of the Employment
Advocate - which is charged with finding discriminatory provisions in work
place agreements - and for employers and employees.

Flexibility
- a double edged sword

The
new post WorkChoices focus on individual bargaining is something of a double
edged sword. In principle a more flexible approach to working hours should make
it easier for women - and men - to negotiate a better balance
between work and family commitments. No doubt there will be winners in the new
work place agreement.

However,
HREOC is deeply concerned about the capacity of vulnerable workers to
effectively negotiate strong workplace agreements. The sections of the community
who have traditionally faced barriers in the labour market are again likely to
lose out- people with disabilities, women, young people, Indigenous
people, and people working in low wage jobs.

The
danger is that the focus on individual bargaining will result in 'hours
flexibility' - or in other words longer operating hours - but
no real flexibility for employees in negotiating the balance between work and
family life. In other words, for some people the new flexibility may result in
irregular working hours, difficulties organizing - and retaining -
child care services and less time with the kids.

As you may know there are a number
of studies which suggest that women are less likely to benefit from a culture of
individual bargaining than men. For those women on enterprise agreements, the
level of wages negotiated tends to be lower. [4] This clearly creates concerns about how to
ensure the gender wage gap gets smaller not larger - the average weekly
earnings for full-time women workers is still only 84.4% of their male
equivalents.

Future
Directions

One
of the positive developments that HREOC has seen is that there are employers who
are taking on leadership roles in promoting work-life balance amongst their
employees and taking responsibility for narrowing the gender pay gap.

In
February 2006, the National Australia Bank became the first employer to commit
to a pay equity audit.

HREOC
plans to keep working with employers and employees to create a better
understanding of federal discrimination laws. We will also continue to monitor
emerging trends in complaints.  

Ultimately,
HREOC believes that it is vital to a flexible, fair and productive workforce
that Australian workers be able to negotiate wages and conditions effectively
and meet their social and family obligations.

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[1] Now s 659 Workplace Relations Act
1996.

[2] Indirect discrimination involves: (a)  imposing a requirement or condition
which (b) disadvantages people with a particular attribute covered by law
- for example in the SDA, people of the same sex as the aggrieved person
and (c) which is not reasonable in the circumstances.

[3] Hickie v Hunt and Hunt (1998) Commissioner Evatt.

[4] In May 2004, women on registered collective agreements received average hourly
earnings of $22.50 compared to men's $25.10, and on unregistered
collective agreements received $20.30 compared to $22.00: ABS Employee Earnings and Hours  Cat
No 6306.0 May 2004.