ALP to break with Democrats on workplace breast-feeding amendments

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ALP to break with Democrats on workplace breast-feeding amendments

When the ALP announced its amendments earlier this year, it was not complimentary of the Government’s Bill.

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In an effort to get at least ‘marginal’ workplace breastfeeding and pregnancy improvements into law the ALP will break with the Democrats and support Government amendments to the Federal Sex Discrimination Act.

This was a turn around from yesterday when the ALP in the House of Representatives voted unsuccessfully for Democrat and ALP Senate amendments to the Sex Discrimination Amendment (Pregnancy and Work) Bill 2002.

When the ALP announced its amendments earlier this year, it was not complimentary of the Government’s Bill.

Federal Shadow Attorney General, Robert McClelland said: ‘The Howard Government's Bill ignores most of the legislative changes recommended by HREOC and shows that the Howard Government is willing to settle for half measures.

‘Labor's amendments will strengthen the law to protect women from discrimination while they cope with pregnancy or breastfeeding.’

A spokesperson for Shadow Attorney General Robert McClelland said the ALP made no secret of the fact it always intended to vote with the Government if they couldn’t get amendments through the Lower House.

While the ALP continued to believe in their amendments, it was obvious they weren’t going to pass, the spokesperson said.

In an effort to get some improvement in pregnancy and work issues it decided to vote with the Government.

However, ‘the ALP was supporting the Bill as printed with regret’, the spokesperson added.

A spokesperson for the Democrats said they would stick by their amendments, but any chance of success would require ALP support, which they will be insisting on.

In announcing Democrat amendments earlier this week, Senator Natasha Stott Despoja said: ‘The Government’s Bill simply clarifies existing provisions of the Act.

‘While this is welcome it falls well short of sufficiently addressing the ongoing discrimination women experience in the workplace.’

The Government, however, was convinced the Sex Discrimination Amendment (Pregnancy and Work) Bill 2002 in its original form was sufficient.

The Bill is again listed for debate in the Senate today, but neither the ALP nor the Democrats were sure there would be time to vote on the Bill. If this is the case the Bill will be voted on next week.

With ALP support the Bill will become law.

A spokesperson for the Federal Attorney General Darryl Williams said: 'We would not preempt the Senate's decision, however we look forward to the Bill being passed.'

Breast-feeding

Yesterday in the Lower House, the Government rejected 28 ALP amendments concerning the clarification of discrimination on the grounds of breast-feeding, claiming they were unnecessary.

According to the Federal Attorney General Darryl Williams, discriminating against breast-feeding women was already addressed under the Federal Sex Discrimination Act.

However, he conceded the Human Rights and Equal Opportunity Commission Pregnant and Productive report 2001 indicated there was some confusion concerning whether discrimination on the ground of breast-feeding was sex discrimination and this needed clarification.

But the Government had already addressed the issue in the Bill.

‘The Bill amends the definition of sex discrimination in section 5 of the Sex Discrimination Act to make it clear that breastfeeding is a characteristic that pertains generally to a woman and consequently can be a ground of sex discrimination under the Act.’

Employees already covered

The Government rejected the Democrats’ attempt to broaden the definition of Commonwealth employee.

The Sex Discrimination Act already covered federal statutory office holders, judicial office holders and Members of Parliament, Williams said.

Although the Pregnancy Guidelines issued by HREOC in April 2001 included a discussion on the application of the Sex Discrimination Act to unpaid employees, the Government did not support the Democrats amendment to extend coverage to unpaid workers.

Williams said: ‘They may be covered by the Act if an employment relationship is found to exist or if they fall within the ambit of the provision relating to discrimination in the provision of goods, services and facilities.’

Adoption

Williams claimed Democrat amendments concerning the inclusion of adoption in the family responsibility provisions raised broader questions than those considered in the Pregnant and Productive report.

He also considered adoption primarily a State matter.

Also, Democrat attempts to change state instrumentalities he believed was constitutionally complex.

The Government rejected the adoption amendment.

Religious exemption stays

The Democrats attempt to remove the pregnancy and potential pregnancy exemption afforded religious education institutions were also thwarted.

Williams said: ‘It is important that an appropriate balance be maintained under the Sex Discrimination Act between the right to equal treatment and the right to freedom of religious practice.

‘The exemption as currently expressed in the Sex Discrimination Act is not open-ended. The exemption applies only to actions taken in good faith to avoid injuring the religious susceptibilities of adherents of the relevant religion or creed.

‘The HREOC Report on Freedom of Religion and Belief recommended that exemptions in the form of those in section 38 of the Sex Discrimination Act be retained.’

Recruitment

Williams said ALP amendments aimed at stopping recruitment processes that tried to elicit information about whether or not a woman was pregnant or intended to get pregnant and used medical information as a discriminatory tactic were rejected because they were already covered under section 27 of the Sex Discrimination Act.

‘However, the Government recognises that the Pregnant and Productive Report identified a need for greater clarity in relation to the operation of section 27.

‘The Bill meets that need by redrafting the section in language which is easier to understand, thus clarifying its operation generally and in relation to questions about pregnancy and potential pregnancy specifically.’

Punishment

Williams rejected Democrat attempts to introduce the publishing of enforceable standards and allow any person to lodge a complaint about advertising.

He believed the best way to combat discrimination was to educate.

‘The Sex Discrimination Act currently prohibits unlawful discrimination in the arrangements made for recruitment purposes.’

‘In addition, the Sex Discrimination Act makes it an offence to advertise in a discriminatory manner.’

AIRC referral

The Democrat amendment attempting to ’allow the Sex Discrimination Commissioner to refer on her own motion an award or agreement to the Australian Industrial Relations Commission’ was unnecessary, Williams said. 

‘There are already a variety of provisions in the Workplace Relations Act and the Human Rights and Equal Opportunity Act that provide avenues for the AIRC to remedy or vary any discriminatory provision in an award or certified agreement.’

Punitive damages

The Government rejected ALP amendments seeking the award of exemplary or punitive damages.

According to Williams, ‘The Commonwealth human rights legislative regime is remedial rather than punitive. The Government considers that an educative approach to sex discrimination issues is more effective than a heavy handed or punitive approach in individual cases.’

‘Punitive damages are rarely awarded by Australian courts. Such a provision would therefore be unlikely to have any significant deterrent effect on behaviour.'

For more information go to the Parliament of Australia website.

 

 
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