CHAPTER 9
Preventing discrimination
9.1
The terms of reference required the committee to examine the
effectiveness of the Act in preventing discrimination including by educative
means. The committee heard proposals to prevent discrimination through:
-
imposing a positive duty to eliminate discrimination and promote
equality;
-
greater efforts in relation to human rights education; and
-
‘buying’ equality outcomes through government purchasing
requirements.
Positive duty to promote equality
9.2
Some submissions, including the Equal Opportunity Commission of Western
Australia, recommended amending the Act to impose a positive duty on public
organisations to eliminate discrimination and harassment, and promote equality.
This would be similar to the scheme established in the United Kingdom by the Equality
Act 2006 (UK).[1]
The commission argued that:
The existing rights-based approach to addressing discrimination,
as formalised in the SDA and other Australian discrimination statutes, relies
too heavily on the capacity and willingness of individuals to assert those
rights and commence legal proceedings. As a start to shifting the burden off
individuals and on to institutions, the SDA should be amended to incorporate a
gender equality duty, to apply to all Australian public authorities when
carrying out their functions.[2]
9.3
Similarly, Dr Belinda Smith told the committee that:
The US, Australia, Canada and the United Kingdom originally
adopted a negative anti-discrimination law system—an individual, complaint
based, human rights based mechanism. What we have seen in the leading
countries—Canada and the UK—is a positive duty that supplements that. They
still have an anti-discrimination law system, and it is supplemented by a
positive duty.[3]
9.4
Women’s Health Victoria explained that the Equality Act 2006 (UK)
placed a new statutory duty on public authorities. The duty requires
authorities, when carrying out their functions, to have due regard to the need:
9.5
There are also more specific requirements for public authorities to
develop and implement gender equality schemes. The schemes show how authorities
will meet their gender equality duties and must be developed in consultation
with employees, service users and other stakeholders. Compliance with these
positive duties is monitored by the Commission for Equality and Human Rights which
has the power to issue compliance notices. If necessary, the commission can
seek enforcement of a compliance notice through the courts.[5]
9.6
Women’s Health Victoria noted that:
The Duty has been introduced by the UK Government ‘in
recognition of the fact that women and men have different needs in relation to
many public service areas, and that in both the workplace and as service users
they can experience unfair and unequal outcomes’. With the focus of the duty on
outcomes rather than process, organisations are duty bound to proactively
promote gender equality.[6]
9.7
Dr Smith argued that, by contrast, existing laws in Australia impose
only weak process obligations:
One way to think about it is that we have an existing
system—which is our Equal Opportunity for Women in the Workplace Act. That is
in effect a positive duty because it says to employers not only that they must
not discriminate but also that they must do something. It is a very mild, soft
process ...obligation. What must you do? In Australia you must audit your
workplace, you must consult, you must develop a plan and you must report.
The UK has gone further than that. It says, drawing on
regulatory theory, that you must promote equality—that is the general duty—and
then it gives specific duties along the lines of the [EOWW Act]. You must
develop a program and identify the particular problems in your workplace. You
must audit and find those problems. Importantly—something that differs from our
[EOWW Act] — you must publish that information in a way that is comparable so
that stakeholders can actually use it to start lobbying for change and to make
informed decisions.[7]
9.8
Dr Sara Charlesworth suggested that consideration should also be given
to imposing positive duties to promote equality on private sector employers:
It is my view that serious consideration should also be given to
extending such equality duties to the private sector. This is to ensure that in
the area of employment, all those who have redress under the individual
complaint mechanism under the SDA are also able to benefit from positive action
taken to address systemic discrimination and disadvantage. [8]
9.9
Dr Charlesworth considered that the existing duties of private sector
employers under the EOWW Act are inadequate:
The Equal Opportunity for Women in the Workplace Agency under
Equal Opportunity for Women in the Workplace Act... provides a mechanism to
receive and assess reports on steps taken to advance women from private sector
employers of more than 100 people. However the Agency is not resourced or
empowered to conduct comprehensive audits. Moreover there is little remedial
action available to the Agency when possible industry sector or occupation
wide-systemic discrimination is identified... [9]
9.10
Dr Charlesworth also noted that for almost 20 years there has been a
statutory requirement on private sector employers in Northern Ireland to
monitor and report on their equality practices in relation to the employment of
Catholics and that these duties have been effective in improving the employment
profile of Catholics.[10]
9.11
Ms Catharine Bowtell expressed the ACTU’s support for a positive duty to
eliminate discrimination applicable to the public and private sectors including
small businesses:
We support a positive duty—that is, a duty to eliminate
discrimination or a duty to provide fair treatment. That is a general duty. How
that is given effect becomes the issue around whether there is compulsory
reporting, compulsory auditing, compulsory lodging of plans and those sorts of
things. In our view there is no reason to exempt the private sector or to
exempt business on the grounds of business size. But the obligation would
clearly be higher the more sophisticated the organisation is.[11]
9.12
HREOC supported amending the Act to impose a positive duty to take
reasonable steps to eliminate sex discrimination and promote gender equality.[12]
HREOC noted that this would be consistent with the approach taken in relation
to disability discrimination where there has been an increasing shift towards
imposing positive obligations on employers, educators and service providers to
take reasonable steps to improve access and equality for people with
disabilities.[13]
9.13
However, HREOC did not recommend the immediate introduction of a gender
equality duty:
HREOC recognises that the move towards the adoption of a
positive duty to eliminate discrimination and promote gender equality may
require further consultation to identify the way in which a positive duty
should be defined, and how it should be applied. For this reason, HREOC
recommends that introduction of a general positive duty should be considered in
Stage Two of reform.[14]
9.14
HREOC suggested other more specific options for reform including introducing
a capacity for employers not bound by the EOWW Act to register voluntary
‘gender equality action plans’. These would be similar to the disability action
plans which are available under the Disability Discrimination Act 1992.[15]
HREOC explained that:
A Gender Equality Action Plan would be a plan which sets out
specific actions that are to be taken by the employer to promote gender
equality in their organisation, with tangible objectives, ...strategies, roles
and responsibilities, targets or other measures, and evaluative mechanisms.[16]
9.15
HREOC argued that such plans would allow organisations not covered by
the EOWW Act to demonstrate their commitment to equality. Furthermore, preparation
of a plan could be a settlement term where organisations are found to be in
breach of the Act. In addition, HREOC suggested that the EOWW Act or the Act could
be amended to provide for the independent auditing of the implementation and
effectiveness of gender equality action plans by HREOC or EOWA. HREOC noted
that such a function would be similar to the role performed by the Commission
for Equality and Human Rights in the United Kingdom and would require
additional resources.[17]
9.16
ACCI expressed some concerns about the proposals to impose a positive
duty on the private sector to eliminate discrimination and promote equality, Mr
Daniel Mammone of ACCI noted that:
The difficulty for employers is knowing exactly what their legal
obligation is and how to comply with it. If there is a general amorphous
obligation on employers, particularly vicarious liability, it would be very
difficult for the employer to ensure that they comply with it.[18]
9.17
On the more specific proposals that businesses be required to develop gender
equity policies or plans, Mr Scott Barklamb of ACCI also cautioned that, to be more
than a piece of paper, policies have to be a living part of the culture of the
workplace. He suggested that a universal obligation to have a policy may simply
lead to organisations producing pro forma policies or to ‘ticking the box’’.[19] He went
on to suggest:
[W]e would be very concerned that any compulsory plans and the
like are simply additional costs to small businesses, additional regulatory
burdens. ...They will simply become an exercise in compliance and will not
contribute to further cultural change and awareness and diversity and the like,
but will also be potentially resented because they cost money or will be quite
narrowly complied with and put away. I think it is a far more powerful notion
to see a more diverse workplace, to see a more diverse [range] of people in
work and the benefits they provide in your company and in your peer companies
and to hear personal stories of successes.[20]
Education
9.18
Some submissions suggested that education is the most effective means of
preventing discrimination. For example, the Muslim Women’s National Network of
Australia noted that education may ultimately be a more effective tool in
promoting gender equality than legislative change:
The law is a blunt instrument for changing behaviour. While
changes in the law can have some educative value and can sometimes be used to
bring about change, they may, in the short term at least, have adverse
consequences for community harmony. Educational programs and incentives for
organizations that include women in their consultative processes and adequately
meet the needs of all their constituents may be more successful and less
confrontational.[21]
9.19
HREOC and EOWA both play a role in educating employers and the general
public about sex discrimination, sexual harassment and equal employment
opportunity for women (EEO). HREOC has existing functions:
-
to promote understanding and acceptance of, and compliance with,
the Act; and
-
to undertake educational programs for the purpose of eliminating sex
discrimination and sexual harassment, and promoting gender equality.[22]
9.20
HREOC advised that its statutory functions in relation to education and
public awareness are adequately set out in the Act and the HREOC Act but that HREOC
is constrained in its ability to carry out activities in these areas due to
limited resources and competing priorities.[23]
9.21
EOWA also has statutory functions:
-
to undertake educational programs for the purpose of promoting
equal opportunity for women in the workplace; and
-
to promote public understanding and acceptance of equal
opportunity for women in the workplace.[24]
9.22
EOWA advised that its activities in carrying out these functions include
producing educational resources such as its pay equity and bullying and
harassment prevention tools. In addition:
EOWA provides expertise to employers on EEO matters and provides
workshops and tools to assist organisations to address these issues in their
workplaces including online training and educational sessions...
In addition, EOWA conducts workshops and other educational
sessions to assist clients in developing EEO workplace programs and to educate
employers on the business benefits of removing barriers to women’s
participation in the workforce. In 2007-08, a total of 23 workshops were
conducted across Australia, attracting over 200 attendees.[25]
Education in schools
9.23
The committee received evidence which suggested that more needs to be
done in relation to educating the public about their rights and responsibilities
under the Act. Some of this evidence was focused on the particular importance
of education in schools. The Castan Centre for Human Rights Law suggested that
human rights education about sex discrimination, particularly for primary and
secondary students, is vital to eradicating sex discrimination from Australian
society yet there is currently a widespread absence of human rights education
in the curriculum taught at all levels of Australian schools.[26]
The Castan Centre argued that:
Human rights education is fundamentally important to preventing
sex discrimination and promoting gender equality in Australian society. Formal,
structured education concerning human rights generally, and sex discrimination
more particularly, is needed at both primary and secondary levels in order to
create a culture of respect for human rights and freedoms from a young age. It
is only through education that the aims of the SDA can be achieved, and sex
discrimination eliminated.[27]
9.24
The Castan Centre advocated amending the Act to mandate the study of
human rights, including sex discrimination, by all Australian school students.[28]
9.25
The Australian Education Union proposed that HREOC be given an increased
‘educative role’ supported by increased resources.[29]
The union acknowledged HREOC’s existing educational work but suggested that
more could be done:
The Human Rights and Equal Opportunity Commission conducts
training and produces education resources to help teachers introduce human
rights concepts to students and build an awareness of the law and avenues for
discrimination redress. However, this role can always be expanded and better
supported by Government by way of funding.
Schools are being asked to respond to more and more social
problems which are difficult for teachers to manage with limited time. This is
not to say human rights is neglected in the curriculum, but that organisational
support and communication is required to get the best result in terms of
student engagement.[30]
Education in workplaces
9.26
Other organisations pointed to a need for educational programs beyond
schools, particularly in workplaces. For example, Australian Women Lawyers,
submitted that:
[A]ttempts at reform must be multifaceted and target legislative
change, social policy change, cultural change in the workplace and attitudinal
change, in combination. The cultural and attitudinal barriers to women and men
achieving equality in the workplace and the community cannot be addressed by
legislative reform to the SDA alone.
Funding, education and co-ordination of agencies and services
are the key to changing the attitudes which serve as barriers to men and women
taking up flexible work options, and achieving equal opportunity in the
workplace and community.[31]
9.27
More specifically, Australian Women Lawyers recommended that the federal
government provides subsidies to employers who provide employees with education
and training targeted at addressing these attitudinal barriers.[32]
9.28
Mr Ian Scott of Job Watch suggested that many complaints under the Act are
the result of employers simply being unaware of their obligations under the
Act:
[A] lot of our callers work for small to medium enterprises.
...[A] lot of these smaller employers just do not know what their obligations
are. They are strapped for cash occasionally and cannot get legal advice or a
lawyer to help them out with policies and procedures. ...I think that much of
the time the employer just does not know what their obligations are...[33]
9.29
Similarly Legal Aid Queensland suggested that HREOC providing additional
training or materials to employers could help to reduce complaints:
One of the biggest problems experienced in our legal practice is
the lack of knowledge by employers both big and small about sexual
discrimination and sexual harassment and how to deal [with] complaints. The
existence of the Act has not assisted in raising that knowledge of employers,
particularly in the private sector, until they are forced to deal with a
complaint. The Commonwealth Government publications on the Act are an excellent
resource. The Commonwealth Government and [HREOC] are positioned well to
publish and distribute more resources in the future. There could also be a role
in providing more training for employers as it is often the way that the matter
is handled internally that prompts the complaint.[34]
9.30
From an employer’s perspective, VACC suggested that the focus should be
on early education and awareness instead of sanctions and complaints resolution:
VACC members believe that Federal sex discrimination legislation
focuses on sanctions and complaints resolution. While VACC members seek to
comply with their obligations under the Act, the key focus should be on early
education and awareness - raised by the Sex Discrimination Commissioner.
Employers in the industry also believe that the federal sex
discrimination legislation imposes a disproportionate onus on employers in
terms of educating employees about equal opportunity and discrimination.
In our view any reform to the Act should focus on education.
Rather than rely on employers to change the culture of individuals, in most
cases adults, the responsibility of education in the area of equal opportunity
should be collaboratively borne by HREOC, employers and the education system.[35]
9.31
Mr Barklamb of ACCI suggested education was particularly important for
small and medium size businesses:
The legislation has done quite a deal of work concurrently with
generational change, cultural change in management. It is a time to further
promote, encourage, educate and start to think about distilling down quite
important and major work in big businesses on diversity, on cultural change and
the like, and [think] about how to spread those lessons to the small and medium
sized enterprises.[36]
9.32
The Equal Employment Opportunity Network of Australia noted that on
paper many organisations offer a wide variety of flexible work practices but
implementation of these is less effective than it could be. The network
identified building managerial capability as the key to bridging this gap
between policy and practice and suggested HREOC could provide guidance to
employers about implementing flexible work practices.[37]
9.33
Finally, Carers Australia submitted that there is a particular need for
better understanding in workplaces about the role of carers other than parents
of children.[38] Carers Australia recommended that the
Australian Government fund a national campaign to promote to employers the
benefits associated with providing carer-friendly workplaces as well as assisting
employers with education and resources to support carers in the workforce.[39]
Government purchasing requirements
9.34
Dr Charlesworth suggested that another means of preventing
discrimination is to make greater use of government purchasing power to “buy
gender equality outcomes”. Specifically, she recommended strengthening the
existing requirements which exclude organisations from Australian Government
contracts if they are non-compliant with the EOWW Act.[40]
Dr Charlesworth argued that:
One way of ensuring that employers in the private sector adhere
to minimum decent employment and anti-discrimination standards set by HREOC and
move to address systemic discrimination is to ensure that government contracts
are only awarded to those organisations that can demonstrate that they meet
those standards. The use of government purchasing policy has been particularly
effective in Victoria where law firms tendering to carry out services for the
government are obliged to provide evidence of a minimum amount of pro bono work
undertaken and provide details on the quantity and value of the legal work
given to women barristers. As a consequence, the rate of pro bono work has
risen significantly ...as has the rate at which women barristers are briefed.[41]
9.35
In a similar vein, Associate Professor Beth Gaze argued that the
government should:
...make much more extensive use of the tool of contract
compliance, requiring those with whom it contracts for goods and services to
demonstrate commitments to equity in their own suppliers and workforces.
Consulting firms seeking government business, for example, could be required to
provide workforce analyses demonstrating fair employment practices for women
and pay equity audits demonstrating that they take their responsibilities as
equal opportunity employers seriously.[42]
9.36
Similarly, HREOC recommended that the Australian Government should
consider how it can best use its purchasing power to promote gender equality
and address systemic discrimination.[43]
Navigation: Previous Page | Contents | Next Page