Many discrimination complaints going to FW Ombudsman


Many discrimination complaints going to FW Ombudsman

It would appear that some employees are electing to pursue discrimination remedies under the Fair Work Act 2009, judging by the Fair Work Ombudsman’s 2010–11 Annual Report, which records a significant increase in the number of discrimination complaints made under that Act.


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It would appear that some employees are electing to pursue discrimination remedies under the Fair Work Act 2009, judging by the Fair Work Ombudsman’s 2010–11 Annual Report, which records a significant increase in the number of discrimination complaints made under that Act.

recent article on trends in equal opportunity legislation and cases noted a fall in the volume of discrimination complaints made to the Australian Human Rights Commission.

Comparing the Fair Work and EEO jurisdictions
The Annual Report states that the Ombudsman (FWO) received 1171 complaints relating to discrimination in employment, up from 801 in 2009–10, which was the Fair Work Act’s first year of operation.

It is possible that at least part of that increase can be attributed to employees’ greater awareness that they have discrimination remedies available under the Fair Work Act.

Fair Work complaints

Of the complaints made in 2010–11, 20% concerned physical or mental disability, 13% age, 12% family/carer’s responsibilities, 11% race, 8% sex and 8% pregnancy, with lower percentages for the other grounds of discrimination that the FWO can investigate. Age and family/carer’s responsibilities were the two ‘growth areas’ for complaints between 2009–10 and 2010–11.

The FWO can investigate complaints on the grounds of disability, age, family/carer’s responsibilities, race (including national extraction and social origin), sex, pregnancy, sexual preference, marital status, religion or political opinion. The FWO’s Complex Investigations and Innovation Branch contains a specialist anti-discrimination team.

EEO law complaints

The Australian Human Rights Commission (AHRC) 2010–11 Annual Report showed a different pattern for employment-related complaints. Of those, about 44% related to sex, 27% to disability, 16% to race and 13% to age.

The number of complaints under the Age Discrimination Act 2004 actually increased slightly in 2010–11, versus declines under the Acts that cover sex, race and disability discrimination.

It isn’t clear from the AHRC report exactly how many complaints related to employment, because the statistics record multiple areas for many complaints. However, mentions of ‘employment discrimination’ comprise approximately 45% of all the areas of discrimination mentioned in complaints. Projecting that figure onto the 2152 complaints, the AHRC received in 2010–11 produces the estimate that around 1000 complaints were at least mainly employment-related, which if accurate would be slightly less than the number of employment-related discrimination complaints made to the FWO.

However, it is important to note that the AHRC statistics do not include all the employment-related complaints lodged under state and territory Equal Employment Opportunity (EEO) Acts. Taking the latter into account, EEO legislation is still the preferred option for the majority of complainants, even though some of them are now diverting to the FWO.

Complaints increasing overall

Combining the FWO and AHRC discrimination complaint statistics, it would appear that complaints of employment discrimination have actually increased since the Fair Work Act commenced in 2009. The combined totals were similar in 2009–10 and 2010–11, because the increase in complaints to the FWO in 2010–11 roughly matched the decrease in those to the AHRC.

Prior to 2009, the number complaints to the AHRC (then known as the Human Rights and Equal Opportunity Commission) had been steadily increasing, so overall that trend appears to have continued.

Scope of Fair Work Act discrimination provisions

The FWO Annual Report does not provide data on what happened to its discrimination complaints (eg what percentage were conciliated, referred to FWA, rejected). The relevant outcomes for AHRC complaints are summarised in the previous WorkplaceInfo article.

Protecting employees against employment discrimination is one of the objects of the Fair Work Act and it contains various provisions relating to unfair and unlawful termination of employment, flexible working arrangements, equal remuneration and protection against adverse action. An employer cannot take adverse action against an employee on any of the grounds of discrimination listed under ‘Fair Work complaints’ above. Adverse action claims have also been identified as a ‘growth area’ for employment-related complaints since the Act commenced.

The FWO has the powers to refer disputes to FWA for resolution, to commence court proceedings and to represent employees. The FWO also has the powers of an Inspector under the Act. Remedies that FWA can order in relation to discrimination cases are noted at Unlawful termination (general protections).

Industrial relations legislation prior to the Fair Work Act contained provisions that made it unlawful to terminate employment for a ‘prohibited reason’. The list of reasons included the grounds of discrimination prohibited by equal opportunity legislation. These provisions continue in the Fair Work Act, although there were few court cases that used them under the previous legislation, equal opportunity legislation apparently being the preferred option.

It remains to be seen whether the initial trend towards more people pursuing discrimination complaints via the FWO will continue. Partly this is because ‘adverse action’ claims are a new area of grievance resolution and case law on the scope and outcomes of such claims is still evolving.
Source: Mike Toten, HR writer.
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