President speech: Mandatory immigration detention of children in Australia: how far have we come and where to from here? (2010)

NSW Equal Employment Opportunity Practitioners' Association (NEEOPA) Annual General Meeting:

Keynote address

The Hon Catherine Branson QC

President, Australian Human Rights Commission

Freehills, MLC Centre, Martin Place

29 April 2009

1. Introduction

I would like to begin by acknowledging the Gadigal People of the Eora Nation,
the traditional owners of the land on which we meet, and pay my respect to their
elders past and present.

Thank you for allowing me this opportunity to talk to you about the
jurisdiction of the Australian Human Rights Commission and, in particular, its
role in conciliating employment-related complaints.

I will first provide a brief overview of the federal unlawful discrimination
laws as they relate to employment, and of what we refer to as ‘ILO 111
discrimination’.

I will then summarise the nature and spread of the Commission’s work in
conciliating complaints relating to discrimination in employment.

2. Background

a) Unlawful discrimination

Discrimination is prohibited by federal unlawful discrimination laws in all
stages of employment, including in:^[1]

• advertising for positions;^[2]

• arranging interviews;

• selecting the successful candidate;

• the terms upon which employment is offered;

• the conditions of employment;

• access to promotions, training and benefits;

• dismissal; and

• subjecting an employee to ‘any other detriment’.
  

The grounds upon which discrimination is made unlawful under the
federal regime^[3] are:

• race, colour, descent^[4] or
  national or ethnic origin under the Racial Discrimination Act 1975 (the
  RDA);^[5]

• sex, martial status, pregnancy or potential pregnancy and family
  responsibilities, in limited
  circumstances^[6] under the Sex
  Discrimination Act 1984 (the SDA);

• disability under the Disability Discrimination Act 1992 (the
  DDA);^[7] and

• age under the Age Discrimination Act 2004 (the ADA).
  

There are also laws prohibiting discrimination in employment on
similar grounds in each of the States, and an employee can choose whether to
access the Federal or State systems.

b) ILO 111 discrimination

The Commission also has a range of functions in relation to equal opportunity
in employment, based on the International Labour Organisation Discrimination
(Employment and Occupation) Convention 1958 ("ILO Convention
111").^[8] This convention prohibits
discrimination in employment and occupation on additional grounds to those under
unlawful discrimination legislation. These additional grounds include religion,
political opinion, trade union activity; criminal record; medical record and
sexual preference.

The ILO Convention 111 is scheduled to the Human Rights and Equal
Opportunity Commission Act 1986 (“HREOC Act”) and so the
Commission has the power to receive complaints relating to “ILO 111
discrimination” under the HREOC Act.

3. The role of the Australian Human Rights Commission in the investigation
and resolution of complaints

An employee who feels they have been discriminated against in breach of the
federal anti-discrimination law is entitled to lodge a complaint with the
Commission. Given the wide scope of the federal anti-discrimination Acts, as
well as the ILO Convention 111 provisions which cover discrimination in
employment, it comes as no surprise that much of the Commission’s work
revolves around addressing grievances relating to discrimination in the field of
employment.

Approximately 60 percent of complaints made to the Commission in the 2007-08
reporting year related to alleged discrimination in employment.

Looking at each of the anti-discrimination acts, employment-related
complaints constituted:

• 50 per cent of complaints under the Racial Discrimination
  Act^[9]

• 87 per cent of complaints under the Sex Discrimination
  Act^[10]

• 46 per cent of complaints under the Disability Discrimination
  Act^[11]

• 76 percent of complaints under the Age Discrimination
  Act.^[12]
  

In the 2007-08 reporting year the majority of complaints received
under the HREOC Act were about discrimination in employment (79%) and of these,
58% were about discrimination on the ground of criminal
record.^[13] Over the past years,
criminal record discrimination complaints have almost tripled in
number.^[14]

You might be interested to know that the Commission also receives a great
number of enquiries regarding rights and responsibilities in employment. In the
2007-08 reporting year, the Commission responded to about 300 enquiries relating
to personality conflicts or favouritism in employment, about 130 concerning
union or industrial activity, about 1,900 relating to workplace bullying and
over 6,600 relating to unfair dismissal or other industrial
issues.^[15]

As President of the Australian Human Rights Commission, I have responsibility
with the aid of skilled staff to investigate and to attempt to resolve such
complaints by conciliation. Where a complaint of unlawful race, sex, disability
or age discrimination cannot be resolved or where I am of the opinion that
inquiry into the complaint should not be continued, a complaint is terminated.
After a complaint is terminated, the complainant may apply to have the
allegations heard and determined by the Federal Court of Australia or the
Federal Magistrates Court of Australia.

The resolution of complaints is a very important part of the work of the
Australian Human Rights Commission. Like other forms of alternative dispute
resolution, the Commission’s conciliation process is recognised as a
valuable way to resolve disputes in that it is more flexible, accessible and
cost efficient than litigation. The conciliation process is also confidential in
that what is said and done in conciliation cannot be provided to the courts.
Importantly, conciliation provides a unique opportunity for those involved in a
dispute to talk to each other, to understand each others’ perspective and
to find mutually acceptable terms of resolution.

Conciliation can be undertaken at different stages of the complaint process,
including very early in the process if the Commission and the parties are of the
view that this may be beneficial, such as where a complaint raises issues
relating to ongoing employment. The process can also take a number of forms,
including face-to-face meetings between the parties, shuttle negotiation,
teleconferences and shuttle telephone negotiations.

The Commission’s conciliation process has a good success record. In the
2007–08 reporting year, 74 percent of complaints where conciliation was
attempted were successfully
resolved.^[16] Past research
conducted by the Commission also indicates high party satisfaction with outcomes
of conciliation. For example, in a research exercise conducted with 231
complainants and 228 respondents, 82 percent reported that they were satisfied
with the conciliation outcome and of this group, 42 percent reported that they
were ‘highly
satisfied’.^[17]

Recent research undertaken by the Commission has also revealed that many
complaints are resolved on terms which go beyond providing a remedy for an
individual complainant. Conciliated agreements include terms which have broader
impact such as agreements to change policies, practices and procedures; and
agreements to introduce anti-discrimination /EEO policies and training. ^[18]

Surveys undertaken with respondents to complaints has also revealed that
regardless of the outcome of a complaint, involvement in the Commission’s
complaint process can result in increased knowledge of the law and
responsibilities under the law and can stimulate broader workplace changes such
as the introduction of anti-discrimination /EEO polices and
training.^[19]

4. Conclusion

Of course, it would be ideal if workplace grievances could be resolved
internally, without needing to resort to the Commission’s conciliation
process. Proactive management policies and internal complaint mechanisms will
not only help avoid negative publicity and costs, but will also increase
employee satisfaction and retention in the long-term.

If you would like to read more on how to develop and implement
anti-discrimination policies or internal grievance procedures, a range of
materials is available on the website of the Australian Human Rights Commission
(www.humanrights.gov.au).

^[1] See RDA ss 9 and 15; SDA s 14;
DDA s 15; ADA s 18. Note that the specific prohibition on discrimination in
employment in s 15 of the RDA is not as comprehensive as those in the other
Acts. However, the effect of s 9 of the RDA, which contains a unique general
prohibition on discriminatory conduct, can be expected to produce the same
(indeed, potentially more extensive) protection against discrimination in all
aspects of employment.

^[2] See RDA
s 16; SDA s 86; DDA s 34; ADA s
50.

^[3] Note that prohibitions at
the State and Territory level are more extensive, covering grounds such as
sexuality/homosexuality, carer’s responsibility, criminal record, trade
union activity and political opinion.

^[4] Note that descent is not
included in the grounds covered by the specific prohibition against
discrimination in s 15 of the RDA but is included in the general prohibition in
s 9.

^[5] Including the race, colour
or national or ethnic origin of a person’s associate: see s
15.

^[6] See s
14(3A).

^[7] Including the
disability of a person’s associate: see s
15.

^[8] Ratified by Australia in
1973. The ILO Convention 111, like the ICCPR, is not directly implemented in
Australia and does not form part of Australian law though, like the ICCPR, it
has been ratified by Australia and is legally binding on Australia in
international law. It also affects domestic law where legislation permits
discretion: it is accepted that discretion should be exercised in conformity
with Australia's international treaty obligations.

^[9] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, p
48.

^[10] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, p
50.

^[11] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, p
52.

^[12] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, p
54.

^[13] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, pp 55,
77.

^[14] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, p
58.

^[15] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, p
61.

^[16] Human Rights and Equal
Opportunity Commission, Annual Report 2007-2008, p
59.

^[17] Tracey Raymond & Sofie Georgalis, ‘Dispute
resolution in the changing shadow of the law: A study of parties’ views on
the conciliation process in federal anti-discrimination law’, paper
presented at the 6th National Mediation Conference, September 2002. Available
at: http://www.hreoc.gov.au/complaints_information/publications/shadow_paper.html^[18] . Data on 192 conciliated complaints revealed that 23% included an
agreement to change practices and procedures, 11% included an agreement to
modify facilities or premises, 12% included an agreement to conduct
anti-discrimination /anti-harassment training and 8% included an agreement to
introduce or review anti-discrimination /anti-harassment policies.

^[19] Of the 150 respondents
surveyed: 54% reported that as a result of the complaint they had gained a
better understanding of anti-discrimination law and their responsibilities under
the law; 46% reported that they had introduced or revised anti-discrimination
/anti-harassment or EEO policies; and 51% reported they had introduced or
revised anti-discrimination/anti-harassment or EEO training.