Will EEO legislation be harmonised next?

Analysis

Will EEO legislation be harmonised next?

With five federal Acts and separate Acts in every state and territory, and more recently bodies such as Fair Work Australia becoming involved in discrimination issues, equal opportunity/anti-discrimination legislation looks like a prime opportunity for ‘harmonisation’ along the lines of occupational health and safety legislation.

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With five federal Acts and separate Acts in every state and territory, and more recently bodies such as Fair Work Australia becoming involved in discrimination issues, equal opportunity/anti-discrimination legislation looks like a prime opportunity for ‘harmonisation’ along the lines of occupational health and safety legislation.

How feasible is it, and what would be likely to change?

These issues were addressed in a session at the Workplace Relations Centre’s 2012 Labour Law Conference, held in Sydney on 13 August 2012.

Therese MacDermott, senior lecturer at Macquarie Law School, noted that there are separate federal Acts outlawing discrimination on the grounds of race, sex, disability and age. They were enacted in 1975, 1984, 1992 and 2004, respectively, so have widely divergent structures and scope. Some have also had many incremental amendments over the years.

Another Bill, the workplace gender equality Bill is currently before the Senate as an extensive amendment of the requirements for organisations to report on the steps they are taking to promote equal opportunity for women employees. However the Bill is still based on a ‘persuasive’ (versus ‘enforcement’) model, so MacDermott doubted that it would achieve major improvements.

MacDermott quoted the opinions of people such as the current Disability Discrimination Commissioner that current legislation has had rather limited impact on employment, although it has been successful at reducing discrimination in other areas.

What might result from harmonisation?
 
The Federal Government has been studying the possibility of combining the four anti-discrimination Acts into a single one. An exposure draft Bill is scheduled for release in September 2012.

MacDermott suggested that the following amendments should be considered:
  • The definition of discrimination: Currently, there are separate definitions of direct and indirect discrimination, and the latter in particular is very complex (with its reliance on ‘comparators’ for instance). It would be possible for one definition to cover both direct and indirect discrimination, as is the case with the general protection provisions in the Fair Work Act 2009, and add a ‘reasonable adjustments’ qualification to it.
  • The burden of proof is currently too onerous for a complainant: Many complaints fail because the complainant requires access to information that only the employer is privy to. The onus could be replaced by either a general rebuttal presumption or a shifting onus, again as is the case in the Fair Work Act. 
  • New grounds of unlawful discrimination such as gender identity, sexual orientation and family/domestic violence could be added: Note: state and territory Acts have much wider ranges of grounds of discrimination than the federal jurisdiction.
  • The current Acts have long lists of exceptions from their coverage, again very disparate: They could be replaced by a general limitations clause, along the lines that discrimination was not unlawful if it was ‘necessary and proportionate to achieving the objective of ...’.
  • Complaint resolution: The anti-discrimination administrative organisations currently have fewer powers than organisations such as Fair Work Australia and the Australian Competition and Consumer Commission, and are also much less well resourced. This means that they are less able to provide support and assistance to complainants.
Harmonisation of federal, state and territory EEO Acts?
 
Could a single national anti-discrimination/EEO system, with state and territory legislation harmonised with federal, be feasible? MacDermott described it as ‘a debate we have to have’”, but said it would not be easy to achieve.

Possible future directions
 
Apart from harmonisation, MacDermott made the following comments about changes to the direction and emphasis of anti-discrimination generally:
  • A positive duty to eliminate discrimination at the workplace could replace the current obligation to refrain from discriminating. The legislation could be moving this way anyway, with Victoria now requiring employers to take reasonable steps to prevent discrimination.
  • The current provisions that grant exemptions from coverage for special measures to provide equality for disadvantaged groups are seldom used, because they contain the disincentive that another group may be disadvantaged if they are implemented. An alternative could be to have applications for measures certified by the Australian Human Rights Commission as compliant.
  • Targets and quotas have been resisted to date and are often regarded as a last resort, but some influential commentators have suggested that they are the only way to guarantee equality of opportunity.
If there is an overall trend in all the above proposals, it is to place greater emphasis upon active engagement in EEO issues. The emphasis in current legislation is on action generated by complaints after discrimination has already occurred.

Further information
 
For more information about this conference, visit the Workplace Research Centre website.

Source: Mike Toten, HR Writer, prepared this summary.
 
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