|
Navigation: Previous Page | Contents | Next Page
Fair Work Amendment (Small
Business-Penalty Rates Exemption) Bill 2012
Introduced into the Senate on 16
August 2012
By: Senator Xenophon
1.2
The committee seeks further information from Senator Xenophon on the
following matters before forming a view whether the bill is compatible with
human rights as defined in the Human Rights (Parliamentary Scrutiny) Act
2011:
-
whether the proposed measures aim to achieve a legitimate
objective (for example, are they addressing an area of public or social concern
that is pressing and substantial enough to warrant limiting rights?);
-
whether the measures are rationally connected to that objective
and based on reasonable and objective criteria (for example, why are workplaces
with less than 20 full-time staff considered to be an appropriate cut-off
point?); and
-
whether and how these measures are proportionate to the objective
to be achieved (for example, are the measures likely to impact
disproportionately on particular groups or individuals?).
1.3
The committee also seeks clarification as to how the bill engages the
right to form and join trade unions in article 8(1)(a) of International
Covenant on Economic, Social and Cultural Rights ICESCR, as claimed in the
statement of compatibility.
Purpose of the bill
1.4
The bill amends the Fair Work Act 2009 to exclude employers in
the restaurant and catering or retail industries that employ fewer than 20
full-time equivalent staff from being required to pay penalty rates under an
existing or future modern award unless an employee has worked more than ten
hours in a 24-hour period or more than 38 hours in a week.
Compatibility with human rights
Right to work and rights in work
(Article 6(1) and article 7 ICESCR)
Right to equality and
non-discrimination (Article 2(2) ICESCR and article 26 ICCPR)
1.5
The statement of compatibility states that the bill engages the right to
work and rights in work, in particular the right to earn a fair wage and equal
remuneration for work of equal value. These rights are contained in articles 6
and 7 of the ICESCR. The statement also mentions article 8(1)(a) of the
ICESCR, which guarantees the right to form and join trade unions, but does not
explain how the bill engages this right.
1.6
The statement of compatibility claims that the bill does not limit the
right of individuals to earn fair wages or equal remuneration because it only
affects the circumstances in which certain employers will be required to pay penalties
above the base wage.
1.7
The committee observes that the bill arguably raises a prima facie
issue of discrimination because the amendments differentiate between particular
groups of employees – ie, certain employees will be treated
less favourably than other employees in a similar situation on the basis of the
size of the workplace in which they are employed. The amendments would
also appear to differentiate between particular groups of employers on a
similar basis.
1.8
The right to non-discrimination is protected in Article 2(2) of the
ICESCR, which prohibits discrimination on prohibited grounds in the exercise of
the economic, social and cultural rights guaranteed in the Covenant. In
addition article 26 of the International Covenant on Civil and Political Rights
(ICCPR) contains an independent guarantee of equal protection of the law.
Article 26 of the ICCPR prohibits discrimination in law or in practice in any
field regulated by public authorities. This means that when the
Commonwealth legislates in any particular area, it must do so without
discriminating on the prohibited grounds. Article 26 of the ICCPR is a
‘free-standing’ bar on discrimination and is not limited to the ICCPR rights.
1.9
Discrimination means any distinction, exclusion, restriction or preference
or other differential treatment that is directly or indirectly based on the
prohibited grounds of discrimination and which has the intention or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of all rights and freedoms.
1.10
The grounds of prohibited discrimination are not closed, and include
race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. The UN Human Rights Committee
(HRC) has not issued any specific guidance on the meaning of ‘other status',
preferring instead to treat it on a case by case basis. It has nevertheless
indicated that a clearly definable group of people linked by their common
status is likely to fall within the category of 'other status'. Among
other things, the HRC has found age to qualify as prohibited grounds under
‘other status’.
1.11
A difference in treatment on prohibited grounds, however, will not be
directly or indirectly discriminatory provided that it is:
-
aimed at achieving a purpose which is legitimate;
-
based on reasonable and objective criteria, and
-
proportionate to the aim to be achieved.
1.12
The committee is seeking further information from Senator Xenophon on
these matters before forming a view on the bill's compatibility with human
rights.
Navigation: Previous Page | Contents | Next Page
Top
|