Commission submissions: Gunn and Taylor

IN THE AUSTRALIAN INDUSTRIAL RELATIONS
COMMISSION

MATTER NO.
C2002/1491

BETWEEN

GUNN
AND TAYLOR (AUST) PTY LTD

Appellant

and

AUTOMOTIVE,
FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

Respondent

---

Submissions
of the Human Rights and Equal Opportunity Commission

Introduction

1.
The Human Rights and Equal Opportunity Commission ("HREOC") seeks leave
to intervene in these proceedings.

Basis
on which leave is sought

2.
Sub-sections 48(1)(d), (gb) and (h) of the Sex Discrimination Act 1984
(the "SD Act") confer upon HREOC the following functions:

(d)
To promote an understanding and acceptance, and compliance with, this Act;

(gb)
Where HREOC considers it appropriate to do so, with the leave of the court hearing
the proceedings and subject to any conditions imposed by the court, to intervene
in proceedings that involve issues of discrimination on the ground of sex, marital
status, pregnancy or potential pregnancy or discrimination involving sexual harassment;

(h)
To do anything incidental or conducive to the performance of any of the preceding
functions.

3.
HREOC performs a wide range of activities in relation to sex discrimination in
Australian workplaces and in relation to equal remuneration and pay equity issues
pursuant to the following statutory functions:

• Subsections 48(1)(d), (gb) and (h) of the SD Act; and
• Subsections
  11(1)(g), (o) and (p) of the Human Rights and Equal Opportunity Commission
  Act 1986 (the "HREOC Act") which are in similar terms.

4.
These activities have included:

(a)
In 1998 HREOC produced The Equal Pay Handbook (a copy is attached)

(b)
Intervention in the Pay Equity Inquiry before the NSW Industrial Relations Commission
(unreported, Glynn J, IRC 97/6320, 14/12/98)

(c)
Intervention in the Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union v HPM Industries Case [Print P9210]

5.
HREOC has also been involved in proceedings before the Australian Industrial Relations
Commission ("AIRC") that have concerned sex discrimination issues including:

• In 1990 HREOC intervened in the Parental Leave Test Case, which established the
  standard clause for maternity, paternity and adoption leave, currently contained
  in awards.
• In 1994 and 1995 HREOC intervened in the ACTU test cases that established personal/carers'
  leave entitlements. Personal/carers' leave gives employees access to their own
  sick leave to care for a sick relative.
• In
  1995 HREOC was represented on the AIRC central working party for the pilot award
  review process and subsequently intervened in proceedings to adopt the award review
  principles. A key aspect of this process was the removal of discriminatory provisions
  from federal awards and the inclusion of a model anti-discrimination clause.
• HREOC
  has also intervened in a number of National Wage Cases, making submissions on
  minimum wage levels, particularly as they relate to the protection of living standards
  and the achievement of pay equity for women.
• In
  2000 HREOC intervened in the Australian Metal Workers' Union application to the
  AIRC seeking an increase in the casual loading for workers under the metals award.
  The application argued that existing casual loadings no longer compensate employees
  for the range of entitlements available to permanent employees.
• In
  2001 HREOC intervened in the ACTU test case that established unpaid parental leave
  entitlements for casual workers employed for more than 12 months with the same
  employer, through the award system.

6.
In its report of the National Pregnancy and Work Inquiry, Pregnant and Productive:
It's a right not a privilege to work while pregnant HREOC stated at paragraph
8.1 that '[a]ll parties to the employment relationship must operate within
both the workplace relations and the anti-discrimination systems in Australia.
It is therefore important that they operate together as harmoniously and simply
as possible.' Recommendation 20 of the report recommended 'that the Sex
Discrimination Commissioner and the [AIRC]… establish formal links and protocols
for information sharing and exchange of expertise, with specific reference to
sex and pregnancy discrimination issues.'

7.
A primary responsibility of HREOC is the resolution of complaints of discrimination
under the SD Act. If granted leave to intervene HREOC would seek to provide the
AIRC with an overview of its complaint handling function.

8.
HREOC submits that the appeal involves issues of general principle and public
importance which may affect, to a significant extent, persons other than the parties
who are before it. [1] HREOC further submits that it has:

(a)
A legitimate concern in making submissions in relation to the human rights of
people making equal remuneration applications to the AIRC; [2]

(b)
An interest in the subject of litigation greater than a mere desire to have the
law declared in particular terms; [3]

(c)
An ability to make submissions which the AIRC might consider that it "should
have to assist it to reach a correct determination"; [4]

(d)
Special knowledge and expertise relevant to the issues the subject of the appeal;
and

(e) An ability
to make submissions which differ from those of the parties and are likely to assist
the AIRC in a way in which the AIRC would not otherwise have been assisted. [5]

9.
No practical considerations militate against the granting of leave because:

• All parties, have received adequate notice of HREOC's intention to seek leave
  to intervene; and
• All parties have received adequate notice of the outline of the submissions proposed
  to be made by HREOC in the event that leave to intervene is granted; and
• Although
  some of the submissions made in HREOC's proposed intervention may also be addressed
  in the submissions of parties, HREOC submits:
  • HREOC's perspective and the sources it will draw on for its submissions are likely
    to differ from those of the other parties to the appeal. In that sense, there
    is unlikely to be significant duplication between HREOC's submissions and the
    submissions of the parties.
  • HREOC seeks leave to present oral argument only to the extent the AIRC indicates
    it will be assisted by such argument. In making more detailed written submissions
    on issues which the parties may also address, it is unlikely HREOC's intervention
    will involve any prejudice to the other parties in the appeals.

Statutory
construction

10.
Where a statute, such as the Workplace Relations Act 1996 (Cth) ("WR
Act"), incorporates or refers to a provision of an international treaty,
in whole or in part, the statute must be given the same meaning as the international
instrument. [6]

11.
If a statute transposes the text of a treaty, or follows the language of the treaty
quite closely, interpretation of provisions of the treaty itself may be necessary.
In these circumstances, Australian courts and tribunals interpret treaty provisions
in accordance with international rules governing treaty interpretation, namely
the Vienna Convention on the Law of Treaties 1969. [7]

12.
The Vienna Convention provides that the general rule of interpretation is that
'a treaty shall be interpreted in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object
and purpose'.

International
Conventions

13.
The AIRC is obliged to consider Australia's obligations under international Conventions
when considering an application for equal remuneration orders. In exercising its
powers under Part VIA Division 2 of the WR Act the AIRC is obliged to take into
account principles of anti-discrimination legislation and international obligations.
In particular, HREOC submits that these international conventions, while complementary,
differ in their objects, fields of operation and terms to such an extent that
a remedy sought pursuant to the HREOC Act and the SD Act will not necessarily
satisfy international labour obligations.

14.
The obligation of the AIRC is made clear in section 3 of the WR Act, which provides:

Section
3 Principal Object of this Act

The
principal object of this Act is to provide a framework for cooperative workplace
relations which promotes the economic prosperity and welfare of the people of
Australia by:

(j)
respecting and valuing the diversity of the work force 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; and

(k)
assisting in giving effect to Australia's international obligations in relation
to labour standards.

15.
Specifically, the AIRC is to take into account the Anti-Discrimination Conventions
when making an order for equal remuneration for work of equal value. Section 170BA
of the WR ACT is in the following terms:

170BA
Object

The
object of this Division is to give effect, or further effect, to:

(a)
the Anti-Discrimination Conventions; and

(b)
the Equal Remuneration Recommendation, 1951, which the General Conference of the
International Labour Organisation adopted on 29 June 1951 and is also known as
Recommendation No. 90; and

(c)
the Discrimination (Employment and Occupation) Recommendation, 1958, which the
General Conference of the International Labour Organisation adopted on 25 June
1958 and is also known as Recommendation No. 111.

16.
The Anti-Discrimination Conventions mentioned in s.170BA(a) are defined in s.4
of the WR Act as:

(a)
The Equal Remuneration Convention;

(b)
The Convention on the Elimination of All Forms of Discrimination Against Women
("CEDAW");

(c)
The Convention Concerning Discrimination In Respect of Employment and Occupation;
and

(d) The International
Covenant on Economic, Social and Cultural Rights.

17.
Amongst other things, these international conventions commit Australia to respectively:

• Ensuring
  the application to all workers of the principle of equal remuneration for men
  and women workers for work of equal value;
• Taking all appropriate measures to eliminate discrimination against women by any
  person, organisation or enterprise;
• Ensuring the right to equal remuneration, including benefits, and to equal treatment
  in respect of work of equal value, as well as equality of treatment in the evaluation
  of the quality of work; and
• Pursuing equality of opportunity and treatment in respect of employment and occupation
  and eliminating any discrimination in respect thereof.

18.
The relevant objects of the SD Act are set out in section 3:

Section
3 Objects

The
objects of this Act are:

(a)
to give effect to certain provisions of the Convention on the Elimination of All
Forms of Discrimination Against Women;

Equal
Remuneration Convention (ILO 100)

19.
Article 1 of ILO 100 defines "remuneration" and "equal remuneration
for men and women workers for work of equal value". The term 'remuneration'
is defined as including 'the ordinary, basic or minimum wage or salary and
any additional emoluments whatsoever payable directly or indirectly whether in
cash or in kind, by the employer to the worker and arising out of the worker's
employment'. The term 'equal remuneration for men and women workers for
work of equal value' is defined to mean 'rates of remuneration established
without discrimination based on sex'. There is no definition of discrimination
in this Convention.

20.
Under Article 2 of ILO 100 , State Parties are required to promote and ensure
the application to all workers of the principle of equal remuneration for men
and women workers for work of equal value by means of national laws, legally recognised
machinery for wage determination, or collective agreements between employers and
workers. Article 3 makes reference to the promotion of objective appraisal of
jobs on the basis of the work to be performed. It also specifies that differential
rates, without regard to sex, based on objective appraisal of the work to be performed
are not contrary to the principle.

Convention
on the Elimination of All Forms of Discrimination Against Women

21.
A copy of the CEDAW is included as a schedule to the SD Act.

22.
The Preamble makes reference to the Universal Declaration of Human Rights which
refers to the inadmissibility of discrimination. It notes that there is an obligation
on State Parties to ensure the equal rights of men and women, and that there is
concern that discrimination against women still exists.

23.
Article 1 of CEDAW defines discrimination against women as including 'any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective
of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or
any other field'. Article 2 provides that State Parties 'condemn discrimination
against women in all its forms' and agree to pursue by all appropriate means
a policy of eliminating discrimination against women, including through adopting
appropriate legislative measures, and ensuring through competent national tribunals
the effective protection of women against any act of discrimination.

24.
Article 11 of CEDAW provides that measures to eliminate discrimination against
women in the field of employment shall be taken by State Parties to ensure women
have the same rights as men in particular, 'the right to equal remuneration,
including benefits, and to equal treatment in respect of work of equal value,
as well as equality of treatment in the evaluation of the quality of work'.

Convention
Concerning Discrimination In Respect Of Employment and Occupation

25.
Article 2 of this convention requires each State Party to 'pursue a national
policy designed to promote, by methods appropriate to national conditions and
practice, equality of opportunity and treatment in respect of employment and occupation,
with a view to eliminating any discrimination in respect thereof'. Discrimination
includes any distinction made on the basis of sex (Article 1). Pursuant to Article
3(b) of that Convention, each State Party undertakes 'to enact such legislation…as
may be calculated to secure the acceptance and observance of the policy'.

International
Covenant on Economic, Social and Cultural Rights

26.
Article 7 of this convention provides that States Parties recognise the right
of everyone to the enjoyment of just and favourable conditions of work which ensure,
in particular, 'Remuneration which provides to all workers as a minimum…Fair
wages and equal remuneration for work of equal value without distinction of any
kind, in particular women being guaranteed conditions of work not inferior to
those enjoyed by men, with equal pay for equal work' (Article 7(a)(i)). Article
3 requires the States Parties 'to ensure the equal right of men and women to
the enjoyment of all economic, social and cultural rights set forth in the present
Covenant'. Article 2(1) requires States Parties 'to take steps…to
the maximum of its available resources, with a view to achieving progressively
the full realisation of the rights recognised in the present Covenant by all appropriate
means, including particularly the adoption of legislative measures'.

The
Differences Between The Conventions

27.
HREOC submits that while these international conventions are complementary, there
are significant differences between them. First, the object and field of operation
of CEDAW is much broader than the Equal Remuneration Convention or the Convention
Concerning Discrimination In Respect Of Employment and Occupation in that these
conventions are limited to the field of employment. On the other hand, CEDAW only
applies to discrimination against women whereas the Equal Remuneration and Discrimination
(Employment and Occupation) Conventions apply to all workers.

28.
Secondly, the relevant articles of the conventions are expressed differently.
Article 11(1)(d) of CEDAW not only obliges State Parties to undertake all appropriate
measures to ensure that women have the right to equal remuneration but also to
ensure that women have the right 'to equal treatment in respect of work of
equal value, as well as equality of treatment in the evaluation of the quality
of work'. The Equal Remuneration Convention is restricted to promoting and
ensuring equality of remuneration, as defined in Article 1 (see above).

29.
Article 2(1) of the Equal Remuneration Convention states that the means for ensuring
the application of the principle of equal remuneration for men and women workers
for work of equal value need only be implemented so far as they are appropriate
to, and consistent with, the methods in operation for determining rates of remuneration.
This qualification is not replicated in Article 11(1) of CEDAW, where State Parties
are obliged to 'take all appropriate measures'.

30.
The fact that the WR Act requires the AIRC to give effect to a wider range of
international obligations, which are, in many cases, more specific in their application
than the international obligations to which the SD Act gives effect supports a
conclusion that the remedies available under those pieces of legislation are not
coextensive.

Legislative
framework

The Workplace
Relations Act 1996

31.
HREOC submits that the objects of the WR Act, particularly Part VIA Division 2,
are broader in scope and operation than the objects of the SD Act and HREOC Act.
Further, the terms of the legislation are different. The definition of 'discrimination'
adopted by the AIRC differs to that set out in the SD Act. HREOC submits that
that difference means that the exercise of determining whether unlawful discrimination
under the SD Act has occurred is different to the exercise engaged in by the AIRC
in determining whether there is equal remuneration for work of equal value.

32.
The legislative framework in which the AIRC operates has developed in recent times
in respect to discrimination matters. Since 1992, section 93 of the WR Act has
required the AIRC in the performance of its functions generally to 'take account
of the principles embodied in the …Sex Discrimination Act 1984…relating
to discrimination in relation to employment'.

33.
The equal remuneration provisions, sections 170BA to 170BI, have been operative
since 30 March 1994 as a result of the Industrial Relations Reform Act 1993.
Later amendments to the WR Act did not alter the substance of these provisions.
The relevant provisions provide:

170BB
Equal remuneration for work of equal value

(1)
A reference in this Division to equal remuneration for work of equal value is
a reference to equal remuneration for men and women workers for work of equal
value.

(2) An
expression has in subsection (1) the same meaning as in the Equal Remuneration
Convention.

Note: Article 1 of the Convention provides that the term "equal
remuneration for men and women workers for work of equal value" refers to
rates of remuneration established without discrimination based on sex.

170BC
Orders requiring equal remuneration

(1)
Subject to this Division, the Commission may make such orders as it considers
appropriate to ensure that, for employees covered by the orders, there will be
equal remuneration for work of equal value.

(2)
Without limiting subsection (1), an order under this Division may provide for
such increases in rates (including minimum rates) of remuneration (within the
meaning of the Equal Remuneration Convention) as the Commission considers appropriate
to ensure that, for employees covered by the order, there will be equal remuneration
for work of equal value.

(3)
However, the Commission may make an order under this Division only if:

(a)
the Commission is satisfied that, for the employees to be covered by the order,
there is not equal remuneration for work of equal value; and

(b)
the order can reasonably be regarded as appropriate and adapted to giving effect
to:

(i)
one or more of the Anti-Discrimination Conventions; or

(ii)
the provisions of the Recommendation referred to in paragraph 170BA(b) or (c).

170BD
Orders only on application

The
Commission must only make such an order if it has received an application for
the making of an order under this Division from:

(a)
an employee, or a trade union whose rules entitle it to represent the industrial
interests of employees, to be covered by the order; or ]

(b)
the Sex Discrimination Commissioner.

170BE
No order if adequate alternative remedy exists

The
Commission must refrain from considering the application, or from determining
it, if the Commission is satisfied that there is available to the applicant, or
to the employees whom the applicant represents, an adequate alternative remedy
that:

(a)
exists under a law of the Commonwealth (other than this Division) or under a law
of a State or Territory; and

(b)
will ensure, for the employees concerned, equal remuneration for work of equal
value.

34.
In relation to section 170BE, the Senate's Explanatory Memorandum for the Industrial
Relations Reform Bill 1993, at page 24 states that '[t]he alternative remedy
must be one that will ensure equal remuneration for work of equal value…;
by this test, the alternative remedy will satisfy the relevant treaty obligations…The
adequacy of the remedy will be assessed in the context of this new Part IVA of
the IR Act, and in the context of the treaties implemented. Even if that alternative
remedy might be found, as a matter of international law, to meet the treaty obligation
(although perhaps only just meet it), the Commission [the AIRC] will be able to
give the applicant a remedy when the alternative remedy is inadequate. This will
avoid technical jurisdictional arguments defeating the benefit of this law.'

35.
At page 20 of the House of Representatives' Supplementary Explanatory Memorandum
it states that the 'question of whether the alternative remedy is "more
appropriate" is not a matter for the AIRC to decide in isolation from the
question of whether the alternative remedy is "adequate".'

36.
It is clear from the Explanatory Memoranda that Parliament intended that the equal
remuneration provisions in the then Industrial Relations Act 1988 (Cth)
should do something more than just meet Australia's treaty obligations. Parliament
intended that the enactment of section 170BE should 'avoid technical jurisdictional
arguments defeating the benefit of this law'. The contention that the SD Act provides
an 'adequate alternative remedy' could be classified as just such an argument.

The
Sex Discrimination Act 1984

37.
The relevant objects of the SD Act are stated in section 3:

Section
3 Objects

The
objects of this Act are:

(a)
to give effect to certain provisions of the Convention on the Elimination of All
Forms of Discrimination Against Women; and

(b)
to eliminate, so far as is possible, discrimination against persons on the ground
of sex, marital status, pregnancy or potential pregnancy in the areas of work,
accommodation, education, the provision of goods, facilities and services, the
disposal of land, the activities of clubs and the administration of Commonwealth
laws and programs; and

(d)
to promote recognition and acceptance within the community of the principle of
the equality of men and women.

38.
Unlawful discrimination on the ground of sex may be characterised as direct sex
discrimination (as provided for in section 5(1) of the SD Act) or indirect sex
discrimination (defined in section 5(2) of the SD Act).

5
Sex discrimination

(1)
For the purposes of this Act, a person (in this subsection referred to as the
discriminator) discriminates against another person (in this subsection
referred to as the aggrieved person) on the ground of the sex of the aggrieved
person if, by reason of:

(a)
the sex of the aggrieved person;

(b)
a characteristic that appertains generally to persons of the sex of the aggrieved
person; or

(c)
a characteristic that is generally imputed to persons of the sex of the aggrieved
person;

the
discriminator treats the aggrieved person less favourably than, in circumstances
that are the same or are not materially different, the discriminator treats or
would treat a person of the opposite sex.

(2)
For the purposes of this Act, a person (the discriminator) discriminates
against another person (the aggrieved person) on the ground of the sex
of the aggrieved person if the discriminator imposes, or proposes to impose, a
condition, requirement or practice that has, or is likely to have, the effect
of disadvantaging persons of the same sex as the aggrieved person.

39.
Direct sex discrimination occurs where a person of one sex is treated less favourably
than a person of the opposite sex in circumstances that are not materially different.

40.
Indirect sex discrimination occurs where a condition, requirement or practice
is imposed or proposed that has the effect of disadvantaging people of one sex
in relation to the other, and this is not reasonable in the circumstances.

41.
Section 14(2) of the SD Act provides:

14
Discrimination in employment or in superannuation

…

(2)
It is unlawful for an employer to discriminate against an employee on the ground
of the employee's sex, marital status, pregnancy or potential pregnancy:

(a)
in the terms or conditions of employment that the employer affords the employee;

(b) by denying
the employee access, or limiting the employee's access, to opportunities for promotion,
transfer or training, or to any other benefits associated with employment;

(c)
by dismissing the employee; or

(d)
by subjecting the employee to any other detriment.

42.
'Terms and conditions' include all components of remuneration including superannuation,
leave, bonuses, discretionary payments, allowances, performance bonuses, commissions
etc.

43. Commissioner
Whelan stated at paragraph [19] of her decision, that the definition of discrimination
adopted by the AIRC in the Third Safety Net Adjustment and Section 150A Review
[Print M5600] and subsequently approved in Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union v HPM Industries [Print P9210], differs
from that in the SD Act. HREOC submits that Commissioner Whelan correctly concluded
that the differences between those definitions means that the exercise of determining
whether unlawful discrimination under the SD Act has occurred is different to
the exercise engaged in by the AIRC in determining whether there is not, for the
employees concerned, equal remuneration for work of equal value, defined by the
Equal Remuneration Convention as 'rates of remuneration established without
discrimination based on sex'.

44.
Indirect discrimination is defined in section 5(2) of the SD Act. It provides:

(2)
For the purposes of this Act, a person (the discriminator) discriminates against
another person (the aggrieved person) on the ground of the sex of the aggrieved
person if the discriminator imposes, or proposes to impose, a condition, requirement
or practice that has, or is likely to have, the effect of disadvantaging persons
of the same sex as the aggrieved person.

45.
A reasonableness test applies to indirect discrimination. Section 7B of the SD
Act provides:

7B
Indirect discrimination: reasonableness test

(1)
A person does not discriminate against another person by imposing, or proposing
to impose, a condition, requirement or practice that has, or is likely to have,
the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition,
requirement or practice is reasonable in the circumstances.

(2)
The matters to be taken into account in deciding whether a condition, requirement
or practice is reasonable in the circumstances include:

(a)
the nature and extent of the disadvantage resulting from the imposition, or proposed
imposition, of the condition, requirement or practice; and

(b)
the feasibility of overcoming or mitigating the disadvantage; and

(c)
whether the disadvantage is proportionate to the result sought by the person who
imposes, or proposes to impose, the condition, requirement or practice.

46.
In the Third Safety Net Adjustment and Section 150A Review at page 19 indirect
discrimination is said to occur

'when
apparently neutral policies and practices include requirements or conditions with
which a higher proportion of one group of people than another in relation to a
particular attribute can comply, and the requirement or condition is unreasonable
under the circumstances'

47.
The SD Act definition pertains to proposed conditions, requirements or practices
as well as those in operation, and looks to the disadvantaging effect of those
conditions, requirements or practices. The notion of disadvantage is not included
in the definition adopted by the AIRC, nor does the definition extend to proposed
policies and practices.

HREOC's
complaint handling function

Overview
of function

48.
To assist the AIRC to compare the remedies available under the HREOC Act and those
available under the WR Act, HREOC has set out below an overview of the complaints
handling process under the HREOC Act and the SD Act. HREOC submits that the remedies
available under the HREOC Act are limited in their application to the specified
complainant and cannot ensure equal remuneration for work of equal value. The
remedies available under Part VIA Division 2 of the WR Act can, and are intended
to, redress systemic pay inequities.

49.
HREOC has the function set out in s.11(1)(aa) of the HREOC Act to investigate
complaints. It provides that:

11
Functions of Commission

(1)
The functions of the Commission are:

(aa)
to inquire into, and attempt to conciliate, complaints of unlawful discrimination;

50.
Provisions relating to this function are contained in Part IIB of the HREOC Act.
Prior to the enactment of the Human Rights Legislative Amendment Act No. 1
1999, similar provisions were contained in the SD Act.

51.
A person alleging unlawful discrimination may lodge a complaint in writing to
HREOC pursuant to s.46P of the HREOC Act. It provides:

46P
Lodging a complaint

(1)
A written complaint may be lodged with the Commission, alleging unlawful discrimination.

(2) The complaint
may be lodged:

(a)
by a person aggrieved by the alleged unlawful discrimination:

(i)
on that person's own behalf; or

(ii)
on behalf of that person and one or more other persons who are also aggrieved
by the alleged unlawful discrimination; or

(b)
by 2 or more persons aggrieved by the alleged unlawful discrimination:

(i)
on their own behalf; or

(ii)
on behalf of themselves and one or more other persons who are also aggrieved by
the alleged unlawful discrimination; or

(c)
by a person or trade union on behalf of one or more other persons aggrieved by
the alleged unlawful discrimination.

(3)
A person who is a class member for a representative complaint is not entitled
to lodge a separate complaint in respect of the same subject matter.

52.
Upon lodgement of a complaint with HREOC, the complaint must be referred to the
President as provided for in s.46PD. The President must then inquire into the
complaint and attempt to conciliate it pursuant to s.46PF(1). In investigating
a complaint HREOC may contact the complainant and the respondent requesting more
information. If necessary the President may require people to provide information
HREOC needs to investigate the complaint pursuant to s.46PI.

53.
The President may terminate the complaint if there is no reasonable prospect of
settling the complaint by conciliation (see s.46PH(1)(i)). The President may also,
at any time during the inquiry, terminate the complaint if she is satisfied that:

• The
  discrimination is not unlawful (s.46PH(1)(a));
• The complaint was lodged more than 12 months after the alleged discrimination
  took place (s.46PH(1)(b));
• The complaint is lacking in substance, trivial, vexatious, or misconceived (s.46PH(1)(c));
• The subject matter of the complaint has been adequately dealt with where some
  other remedy has been sought (s.46PH(1)(d));
• A more appropriate remedy is reasonably available (s.46PH(1)(e));
• The complaint has been adequately dealt with by the Commission or another statutory
  body (s.46PH(1)(f));
• The complaint could be more effectively dealt with by another statutory authority
  (s.46PH(1)(g)); or
• The complaint involves an issue of public importance that it should be considered
  by the Federal Court or the Federal Magistrates Court (s.46PH(1)(h)).

54.
If a complaint is terminated the President issues the complainant with a notice
of termination, a letter giving full reasons why the complaint was terminated,
and a copy of the complaint as provided for in section 46PH(2).

55.
If the complainant wishes to have the complaint heard and determined by the Federal
Court or the Federal Magistrates Court, the affected person must lodge an application
to the court within 28 days of the date of the notice of termination (see sections
46PO(1) and 46PO(2)). The unlawful discrimination alleged in the application must
be the same as, or the same in substance as, that alleged in the terminated complaint
or arise from the same acts, omissions or practices (see s.46PO(3)).

56.
As provided in s.46PO(4), if the court is satisfied that there has been unlawful
discrimination the court may make such orders (including a declaration of right)
as it thinks fit including:

(a)
An order declaring that the respondent has committed unlawful discrimination and
directing the respondent not to repeat or continue such unlawful discrimination;

(b)
An order requiring a respondent to perform any reasonable act or course of conduct
to redress any loss or damage suffered by an applicant;

(c)
An order requiring a respondent to employ or re-employ an applicant;

(d)
An order requiring a respondent to pay to an applicant damages by way of compensation
for any loss or damage suffered because of the conduct of the respondent;

(e)
An order requiring a respondent to vary the termination of a contract or agreement
to redress any loss or damage suffered by an applicant;

(f)
An order declaring that it would be inappropriate for any further action to be
taken in the matter.

Nature
of process

57.
Complaints can be resolved through conciliation proceedings facilitated by HREOC
or through direct negotiations between the parties. While complaint resolution
can occur at any stage of the process it is generally the case that conciliation
takes place on conclusion of investigation and is voluntary in nature. [8]
In some cases an attempt will be made to resolve a complaint either prior to commencement
of a formal investigation or before a response to the complaint has been received.
This may occur at the instigation of HREOC or the parties.

58.
The conciliation process undertaken by HREOC is best defined as 'statutory conciliation'.
The National Alternative Dispute Resolution Advisory Council has defined statutory
conciliation in the Australian context as:

"….a
process in which the parties to a dispute which has resulted in a complaint under
a statute, with the assistance of a neutral third party (the conciliator), identify
the disputed issues, develop options, consider alternatives and endeavour to reach
an agreement. The conciliator may have an advisory role on the content of the
dispute or the outcome of its resolution, but not a determinative role. The conciliator
may advise on or determine the process of conciliation whereby resolution is attempted,
and may make suggestions for terms of settlement, give expert advice on likely
settlement terms, and may actively encourage the participants to reach an agreement
which accords with the requirements of that statute." [9]

59.
Given the nature of the two separate processes provided for in addressing complaints
of unlawful sex discrimination - investigation and attempted conciliation of complaints
by HREOC and the hearing process by the Federal Court or Federal Magistrates Court,
as outlined above - the time taken for a complainant to obtain redress for unlawful
discrimination may be lengthier than that of an employee seeking equal remuneration
orders under the arbitral processes of the AIRC solely because there are two processes
involved. This question of timeliness as an aspect of assessing the adequacy of
the remedy was raised before Commissioner Whelan by the union but was not pursued
further.

60.
Although not apparently forming part of Commissioner Whelan's conclusion, HREOC
notes the following matters as regards the issue of timeliness and HREOC's investigation
and attempted conciliation of complaints function. There is no backlog of complaints
nor significant delay in dealing with complaints lodged. While the average time
taken to finalise a complaint is seven months, this is often a result of the complexity
of the complaint or delay by the parties. [10]

Nature
of orders

61.
In terms of its conciliation function, HREOC follows a 'statutory conciliation'
model (as defined above) whereby the process and the outcomes of the conciliation
are determined by the parties with the assistance of HREOC. Any settlements facilitated
by HREOC must accord with human rights and public policy principles. Section 28
of the HREOC Act states:

28
Nature of settlements

The
Commission shall, in endeavouring to effect a settlement of the matter that gave
rise to an inquiry, have regard to the need to ensure that any settlement of the
matter reflects a recognition of human rights and the need to protect those rights.

62.
Where an affected party of a terminated complaint elects to make an application
to the Federal Court or Federal Magistrates Court under section 46PO, the orders
that the court can make if it is satisfied that unlawful discrimination has occurred
are quite wide (see section 46PO(4)). However, these orders can only compensate
or prevent discrimination in relation to the specified complainant. For example,
although section 46PO(4)(b) permits the court to make an order requiring a respondent
to perform any reasonable act or course of conduct, that act must be undertaken
to redress any loss or damage suffered by the specified complainant. Such an order
will not apply, for example, to future female employees of the employer's platemaking
department. Further, such an order cannot ensure equal remuneration for work of
equal value as section 170BE(b) of the WR Act requires. A court order made pursuant
to section 46PO(4) cannot address systemic or future pay inequities.

63.
Under section 46PO(4)(d) the court may order a respondent to pay damages to an
applicant by way of compensation for any loss or damage suffered by an applicant
because of the conduct of the respondent. Under this provision, an applicant may
be entitled to retrospective compensation for wages lost due to unlawful discrimination
on the part of the respondent. Again this remedy only applies to the specified
complainant. It is noted that the union in its application for equal remuneration
orders under section 170BD of the WR Act did not seek damages by way of compensation
for the female employee involved.

64.
Section 170BC(1) provides that the AIRC may make such orders as it considers appropriate
to ensure that, for employees covered by the orders, there will be equal remuneration
for work of equal value. Such orders may include an order that provides for such
increases in remuneration as the AIRC considers appropriate to ensure that, for
the employees covered by the order, there will be equal remuneration for work
of equal value (see section 170BC(2)).

65.
Orders made pursuant to section 170BC can only be prospective given the arbitral
powers of the AIRC. The AIRC cannot, for example, award damages to employees by
way of compensation for wages foregone due to pay inequities. An order made pursuant
to section 170BC would apply to all female employees engaged in the same or substantially
similar work to the female employee represented by the union in the present case.
Such an order would redress any systemic pay inequities within the platemaking
department of the employer's company. Only the AIRC is empowered to undertake
such an investigation under Part VIA Division 2 of the WR Act.

Representative
complaints

66.
Commissioner Whelan at paragraph [24] of her decision, states that '[w]hile
the [HREOC] Act does provide for representative actions (section 46PB) it is not
clear that an unknown future employee could qualify as a "class member"
and section 46PC would suggest that they could not'. HREOC submits that Commissioner
Whelan's suggestion is correct.

67.
Sections 46PB and 46PC of the HREOC Act provides:

46PB
Conditions for lodging a representative complaint

(1)
A representative complaint may be lodged under section 46P only if:

(a)
the class members have complaints against the same person; and

(b)
all the complaints are in respect of, or arise out of, the same, similar or related
circumstances; and

(c)
all the complaints give rise to a substantial common issue of law or fact.

(2)
A representative complaint under section 46P must:

(a)
describe or otherwise identify the class members; and

(b)
specify the nature of the complaints made on behalf of the class members; and

(c) specify
the nature of the relief sought.

(3)
In describing or otherwise identifying the class members, it is not necessary
to name them or specify how many there are.

(4)
A representative complaint may be lodged without the consent of class members.

46PC
Additional rules applying to representative complaints

(1)
A class member may, by notice in writing to the Commission, withdraw from a representative
complaint at any time before the President terminates the complaint under section
46PH.

(2) The
President may, on application in writing by any affected person, replace any complainant
with another person as complainant.

(3)
The President may at any stage direct that notice of any matter be given to a
class member or class members.

68.
Section 46PC assumes that the class member is a person in existence. Further,
an unknown future employee cannot demonstrate unlawful sex discrimination in order
to be eligible for an order under section 46PO of the HREOC Act.

Determining
Whether There Is An Adequate Alternative Remedy

69.
An exercise of comparison must be undertaken in order to ascertain whether a remedy
available under the SD Act/HREOC Act constitutes an "adequate alternative
remedy' for the purposes of section 170BE of the WR Act. Determination of the
adequacy of alternative remedies requires an assessment of the qualitative differences
between the relevant systems or rights.

70.
Authoritative guidance concerning the determination of the existence of an "adequate
alternative remedy" is provided in decisions of two Full Courts of the Industrial
Relations Court of Australia. These decisions are Liddell v Lembke [11]
and Fryar v Systems Services Pty Ltd. [12] Both cases
concerned the question of whether state industrial systems (NSW in Liddell
and SA in Fryar) provided an adequate alternative remedy to rights and
protections relating to termination of employment within the meaning of section
170EB of the Industrial Relations Act 1988. The relevant legislation required
the Court to decline an unfair dismissal or unlawful termination application if
satisfied of the availability to the applicant-employee of an adequate alternative
remedy under existing machinery that satisfied the Termination of Employment Convention.

71. An alternative
remedy is adequate if it is "equal in magnitude or extent", "commensurate",
"equal or amounting to what is required", "fully sufficient",
"suitable" or "fitting". [13]

72.
As previously submitted, the two systems under the WR Act and the SD Act/HREOC
Act have fundamentally different objectives, functions and effects.

73.
The process under the SD Act:

(a)
Is concerned with the vindication of the human rights of an individual applicant;

(b)
Is concerned with the question of whether direct or indirect discrimination, as
defined, has occurred. This involves assessing the employer's treatment of a woman
compared to that of a man to establish whether less favourable treatment occurred
on the basis of sex or whether the effect of rules or practices was different
for men and women;

(c)
Confines the giving of relief to the individual applicant or applicants who lodged
a complaint;

(d)
May compensate an individual applicant for past loss caused by unlawful discrimination
and may extend to future employment to the extent that the Federal Court may make
an order that the employer refrain from continuing the discrimination.

74.
Conversely, the process under the WR Act involves an inquiry to ascertain whether
rates of remuneration were established with or without sex discrimination. This
is far broader as it enables the AIRC to deal with systemic equal pay issues and
to make orders:

(a)
To change discriminatory provisions surviving in awards or agreements that are
a legacy of Australian history in which work was often segregated into "men's
work" and "women's work" and where low rates for particular work
were set because the work was predominantly performed by women. This is so even
where men are now performing the work and where male workers benefit from the
equal pay order (eg. male librarians). The WR Act is clear that the AIRC is the
appropriate tribunal to deal with these issues - s.40(1) of the SD Act exempts
from the discrimination provisions acts by employers done in direct compliance
with an award or certified agreement and s.46PW of the HREOC Act requires the
President of HREOC to refer discriminatory awards to the AIRC;

(b)
Having a structural effect in that the rate of remuneration for particular work
applies in the future regardless of the identity of the employee performing the
work. The AIRC's orders are not confined to the individual employee currently
affected but may extend to other employees at the workplace or employees who will
perform the work at a later time.

75.
When dealing with an application under s.170BD of the WR Act the central question
for the AIRC is not concerned with the gender of the particular employees performing
the work but whether the remuneration paid for the performance of the work was
established without discrimination based on sex. [14]

76.
It is wrong to merely look at the orders available under the relevant pieces of
legislation without considering the circumstances under which they could be made
or the rights they are intended to vindicate. The remedy cannot be divorced from
the right. [15]

77.
An important matter attending the determination of a complaint under the SD Act
is that the applicant is exposed to an order of the Federal Court to pay the legal
costs of the other party. The Federal Court jurisdiction is a "costs"
jurisdiction and the power to order costs against unsuccessful litigants is exercised
in practice. The power to award costs is so significant that it affects the availability
of the remedy itself. [16] The prospect of being ordered to
pay the costs of a proceeding is a daunting one for any employee. [17]
By reason of s. 347 of the WR Act, the process under s.170BC of the WR Act is
one free of the risk that, except where an application is instituted vexatiously
or without reasonable cause, an applicant may be ordered to pay another party's
legal costs.

78.
The powers of the Federal Court to grant relief under s.46PO(4) of the HREOC Act
are discretionary. It is therefore difficult for the AIRC to be "satisfied",
as required by s.170BE of the WR Act, that there is an adequate alternative remedy,
in circumstances where it is given the "difficult, almost invidious, task
of estimating how another institution would exercise a statutory discretion reposed
in it". To say that the matter should be determined upon the basis of a clear
probability is to accept that sometimes the AIRC's estimation will be wrong and
the applicant will have been denied relief on the basis of a determination that
there was an adequate remedy elsewhere when, in fact, there was not. [18]
Additionally, the AIRC should conclude that no adequate alternative remedy is
available where an applicant's right under the SD Act is qualified and it is impossible
to know whether the alternative remedy is adequate until a proceeding in another
tribunal is concluded. [19]

79.
The power of the President of HREOC to accept or terminate a complaint of discrimination
is discretionary. Under s.46PH(1)(b) the President may terminate a complaint on
one of a number of stated grounds. While the President's discretion is not unfettered,
and must be exercised in accordance with the objects of the SD Act, an applicant's
right to complain is qualified and subject to specific discretionary considerations.
An entitlement to seek to satisfy the President that the discretion to terminate
the complaint should not be exercised is clearly inferior to an unqualified entitlement
to have a determination on the merits. [20]

80.
The wishes or intentions of an applicant for an order under the WR Act are also
relevant. It is relevant that an applicant may wish to obtain orders covering
a number of employees, including prospective employees. [21]
A further qualitative difference concerns the ability of a union to be an applicant
in a proceeding. It is clear that under s.170BD of the WR Act that a union whose
rules entitle it to represent the industrial interests of employees to be covered
by the order may apply for an order. Under the SD Act a union may lodge a complaint
of unlawful discrimination on behalf of a member under s.46P(2)(c), however, the
union's ability to prosecute the complaint in the Federal Court is qualified in
that it must establish that it is a "person affected" under s.46PO(1).

81. It is clear
that the WR Act contemplates the availability of other remedies - s.170BHA reflects
this. If Parliament had wished to deprive the AIRC of jurisdiction whenever women
employees denied equal remuneration for work of equal value have a remedy available
under the SD Act, it would have been very easy for Parliament to have said so.
It would have been easy to provide that the AIRC simply had no jurisdiction. [22]

---

1. United States Tobacco Co v Minister for Consumer Affairs (1988)
20 FCR 520 at 534.

2.
Australian Railways Union v Victorian Railways Commission (1930) 44 CLR 319 at
331 per Dixon J.

3.
Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan CJ.

4.
Levy v State of Victoria (1997) 189 CLR 579 at 603 per Brennan CJ.

5.
Levy v State of Victoria (1997) 189 CLR 579 at 604 per Brennan CJ.

6.
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640.

7.
De L v Director General, NSW Department of Community Services (1996) 187 CLR 640;
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1996) 62 IR 200 at 204.

8.
HREOC does have compulsory conciliation powers contained in section 46PJ of the
HREOC Act, but these are rarely used.

9.
National Alternative Dispute Resolution Advisory Council, ADR Definitions Paper,
1997

10.
The following statistics taken from HREOC's annual report 2000-01 are illustrative:

• HREOC's stated performance measure is for 75 per cent of complaints to be finalised
  within twelve months of date of receipt. In 2000-01 88 per cent of matters were
  finalised within twelve months and the average time from receipt to finalisation
  of a complaint was seven months.
• HREOC's stated performance measure is for 30 per cent of finalised complaints
  to be conciliated. In 2000-01 this goal was exceeded with a 35 per cent conciliation
  rate.
• HREOC's
  stated performance measure is for 60 per cent of parties to be satisfied with
  the complaint handling process. Data for 2000-01 indicates that 86 per cent of
  parties were satisfied with the service they received. Of this 86 per cent, 52
  per cent rated the service they received as 'very good' or 'excellent'.
• In 2000-01 HREOC received 339 complaints under the SD ACT. The majority of these
  complaints related to employment. HREOC finalised 359 complaints under this Act
  and 39 per cent of these finalised complaints were conciliated.
• Of
  the complaints received and finalised under the SD ACT in 2000-01, 27 per cent
  were finalised in less than 3 months; 24 per cent in a three to six month timeframe;
  23 per cent in a six to nine month period; and 14 per cent in a nine to twelve
  month. Eleven per cent of complaints took more than 12 months to finalise; and
  one per cent of complaints took longer than 18 months.

11.
(1994) 127 ALR 342 and (1994) 56 IR 447 (Wilcox CJ, Keely and Gray JJ).

12.
(1995) 130 ALR 168 and (1995) 60 IR 68 (Wilcox CJ, Gray and Beazley JJ).

13.
Liddell v Lembke (1994) 127 ALR 342 at 351-352 (Wilcox CJ and Keely J).

14.
AMWU v David Syme & Co. Ltd (1999) 97 IR 374 at 380-381 (Ross VP).

15.
Liddell v Lembke (1994) 127 ALR 342 at 358-359 (Wilcox CJ and Keely J).

16.
Liddell v Lembke (1994) 127 ALR 342 at 363 (Wilcox CJ and Keely J).

17.
Liddell v Lembke (1994) 127 ALR 342 at 370 (Gray J).

18.
Liddell v Lembke (1994) 127 ALR 342 at 356 (Wilcox CJ and Keely J) and 370 (Gray
J).

19.
Liddell v Lembke (1994) 127 ALR 342 at 369-370 (Gray J).

20.
Liddell v Lembke (1994) 127 ALR 342 at 355 (Wilcox CJ and Keely J).

21.
Liddell v Lembke (1994) 127 ALR 342 at 357 (Wilcox CJ and Keely J).

22.
Liddell v Lembke (1994) 127 ALR 369 (Gray J).

Last
updated 20 May 2003.