Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Australia (Ratification: 1973)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 10 October 2018.

Articles 1 and 2 of the Convention. Legislation and policy. Federal level. Discrimination on the basis of sex. Sexual harassment. The Committee previously requested the Government to develop and implement a national sexual harassment prevention strategy. The Committee notes that the ACTU indicates that sexual harassment at the workplace is a significant issue as nearly 40 per cent of women reported having experienced sexual harassment in the past five years. The ACTU adds that studies show that incidence of sexual harassment has increased by nearly 3.5 per cent each year over the past five years. The Committee notes the Government’s indication, in its report, that on 20 June 2018, the Minister for Women and the Sex Discrimination Commissioner announced a national inquiry into sexual harassment in workplaces which will be undertaken by the Australian Human Rights Commission (AHRC) over 12 months and will report on systematic issues including the nature, prevalence and reporting of sexual harassment in workplaces, the drivers of workplace sexual harassment, the current legal framework with respect to sexual harassment and existing measures and good practice to address workplace sexual harassment. The Committee however notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at: (i) the impact of harassment and bullying in school environments on women and girls who are exposed to intersecting forms of discrimination, highlighting that one in ten women have been sexually harassed at university over the past two years; as well as (ii) the fact that 48 per cent of women have experienced sexual harassment at work and that fear of dismissal often prevents them from reporting such incidents (CEDAW/C/AUS/CO/8, 25 July 2018, paragraphs 41 and 47). It notes that, in its 2018 report, the UN Special Rapporteur on violence against women, its causes and consequences highlights that 20 per cent of the total number of complaints handled by the AHRC are primarily related to sexual harassment of women in employment (A/HRC/38/47/Add.1, 17 April 2018, paragraph 30). Recalling that sexual harassment is a serious form of sex discrimination, the Committee asks the Government to provide information on the proactive measures taken to address the high incidence of sexual harassment in workplaces, such as the elaboration and implementation of comprehensive national policy on the prevention of sexual harassment. It asks the Government to provide information on the results of the national inquiry into sexual harassment in workplaces undertaken by the Australian Human Rights Commission, the recommendations formulated, and the implementation of these recommendations. The Committee asks the Government to provide information on the additional activities undertaken by the Australian Human Rights Commission and the Sex Discrimination Commissioner to address sexual harassment, as well as on the number, nature and outcome of any cases or complaints of sexual harassment dealt with by the labour inspectors, the courts or any other judicial or administrative competent authority.

Sexual orientation. The Committee previously noted the amendment of the Sex Discrimination Act to prohibit discrimination on the grounds of gender identity, sexual orientation and intersex status in prescribed areas of public life, including employment and occupation. It notes the Government’s indication that during the period 2016–17 the AHRC received 465 complaints under the Sex Discrimination Act, of which 39 related to gender identity, seven to intersex status and 40 to sexual orientation; 78 per cent of all complaints received over this period related to employment discrimination. Referring to its previous comments concerning the amendment to the Anti-Discrimination Act 1998 in Tasmania, ensuring protection against discrimination in employment on the basis of gender identity and intersex status, and extending protection against conduct that offends, humiliates, intimidates, insults or ridicules on the grounds, inter alia, of sexual orientation, gender identity and intersex status, the Committee notes that from 2016 to 2018, the Tasmanian Anti-Discrimination Commissioner received three complaints alleging discrimination on the basis of gender identity, and eight complaints concerning sexual orientation. The Committee asks the Government to continue to provide information on the number, nature and outcome of any complaints or cases alleging discrimination on the grounds of gender identity, sexual orientation and intersex status in employment and occupation dealt with by the labour inspectors, the courts or any other judicial or administrative competent authority.

The state level. New South Wales. Pregnant women. The Committee notes with interest the Justice Legislation Amendment Act, 2018, amending the Anti-Discrimination Act by removing two exemptions to the general prohibition on discrimination on the ground of sex which allowed an employer not to offer a pregnant woman a job, or to dismiss a pregnant woman from her job, if the woman was pregnant at the time she applied for or was interviewed for the job. Welcoming this information, the Committee asks the Government to provide information on the application of the Justice Legislation Amendment Act, 2018 in practice, including on any activities undertaken to raise awareness of these new legislative provisions, in particular among women workers, as well as the procedures and remedies available.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee previously noted the adoption of several initiatives and affirmative action measures to promote the employment of persons with disabilities at the national and state levels, but noted the concerns expressed by ACTU regarding the manner in which the wage assessment tools used to determine minimum wages discriminate against persons with disabilities. The Committee notes that ACTU reiterates its concern about wage assessment tools used to determine minimum wages for employees with disabilities and in particular the Business Services Wage Assessment Tool (BSWAT) as it relies on a hybrid model of assessment measuring both competency as well as productivity. It notes the Government’s statement that, on 5 June 2015, the Fair Work Commission (FWC) removed the BSWAT from the Supported Employment Services Award 2010 (SES Award), requesting all Australian disability enterprises to transition to an alternative approved wage assessment tool under the SES Award. The Government adds that on 16 April 2018, the FWC found that, while supported employment has a valuable and socially significant role in providing employment to persons with disabilities, the current wage assessment tools do not meet the Modern Award Objective, so it proposed to: (i) phase out all the existing wage assessment tools; (ii) replace them with a new single prescribed method for the adjustment of the award wage rates for supported employees; and (iii) amend the classification structure of employees in the award. The Government adds that in March 2015, it requested the AHRC to conduct a national inquiry into employment discrimination against persons with disabilities. As a result, in May 2016, the inquiry found that: (i) the labour force participation rate for persons with disabilities was 53.4 per cent, a figure that has changed very little over the last 20 years; (ii) persons with disabilities are also more likely to be unemployed compared to those without disability (10.0 per cent compared with 5.3 per cent in 2016); and (iii) employment discrimination against people with disabilities is ongoing and systemic. As a result, the AHRC made recommendations aimed at reducing, inter alia, the prevalence of discrimination against persons with disabilities in employment. The Government indicates that consultations with several stakeholders were held in 2018 and further work is underway on a detailed proposal of policy options to inform a future model for supported employment. The Committee notes that the Australian Public Service Disability Employment Strategy for 2016–19 aims, inter alia, at expanding the range of employment opportunities for persons with disabilities and access to senior positions in the public sector. It notes that the AHRC undertakes regular awareness-raising activities and produces tools and resources on employment discrimination against persons with disabilities which are available online. The Committee however notes that, in its 2019 concluding observations, the UN Committee on the Rights of Persons with Disabilities (CRPD) was concerned at: (i) the lack of an effective legislative framework to protect persons with disabilities from systemic, intersectional and multiple forms of discrimination, especially at the Commonwealth level; (ii) the significant increase in students with disabilities experiencing a segregated education, seclusion, and isolation; (iii) the ongoing segregation of persons with disabilities employed through “Australian Disability Enterprises” and the fact that such persons receive a subminimum wage; and (iv) the low labour force participation of persons with disabilities, particularly women and Aboriginal and Torres Strait Islander persons (CRPD/C/AUS/CO/2-3, 15 October 2019, paragraphs 9, 45 and 49).

The Committee notes that several initiatives were implemented at the state level to promote vocational training and employment of persons with disabilities, including in Victoria in the framework of the Public Sector Disability Employment Action Plan for 2018–20 which commits to a 6 per cent disability employment target across all Victorian Government departments by 2020, increasing to 12 per cent by 2025. It further notes that in South Australia, the Disability Employment Community of Practice was established as a network of employers who act collectively and individually to increase and sustain employment of people with disabilities.

The Committee asks the Government to continue to provide information on any measures taken at federal and state levels to promote equal opportunity and treatment for persons with disabilities in education, vocational training and employment, particularly with regard to conditions of work and wages. It asks the Government to provide information on any follow-up actions undertaken following the recommendations made by the AHRC to reduce the prevalence of discrimination against persons with disabilities in employment, including within the framework of the elaboration of a future model for supported employment at federal level. The Committee asks the Government to provide statistical information on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Age. The Committee previously noted that the AHRC was conducting a national inquiry into employment discrimination against older workers, which would explore whether Commonwealth laws should be amended, or what other actions should be taken. The Committee notes the Government’s indication that, as a result of the national inquiry, it was found that (i) people aged 55 years and over make up roughly a quarter of the population, but only 16 per cent of the total workforce; and (ii) 27 per cent of people over the age of 50 had recently experienced discrimination in the workplace. The Government states that following the inquiry, in May 2016, the AHRC made recommendations aimed at reducing, inter alia, the prevalence of age discrimination in employment against older workers. The Government adds that, as announced in the 2018–19 Budget, the Government will work with the Age Discrimination Commissioner and industry to establish a collaborative partnership on mature age employment. The Committee notes that such partnership aims at raising awareness of age discrimination among employers, promoting the benefits of employing older workers, and helping employers to manage an age-diverse workforce. Welcoming this information, the Committee asks the Government to continue to provide information on any measures introduced or activities undertaken or envisaged to prevent and address age discrimination in employment and occupation, as well as on their impact.

Articles 2 and 3. Equality of opportunity and treatment between men and women. Occupational segregation. The Committee previously noted from the Australia’s Gender Equality Scorecard for 2015–16 that women in leadership positions, including chief executive officers (CEOs) and key management personnel, scored low at 16.3 and 28.5 per cent respectively, and asked the Government to provide information on any legislative, policy or other measures taken to promote and encourage the appointment of women to leadership positions in both the private and public sectors. The Committee notes the Government’s indication that the Australia’s Gender Equality Scorecard for 2016–17 shows that the gender balance in leadership is improving as the representation of women across all managerial categories has increased since 2013–14, with the percentage of CEOs who are women now at 16.5 per cent, and the percentage of key management positions held by women now at 29.7 per cent. The Committee notes the Government’s commitment to achieving a target of women holding 50 per cent of Government board positions overall. The Government states that, as of 31 December 2017, women held 44.5 per cent of Australian Government board positions, a 1.8 percentage point increase since June 2017. The Committee notes that, following a report released in June 2017 by the Sex Discrimination Commission, recommendations were issued, calling for sweeping reforms to the recruitment and retention of women in the armed forces, as well as their enhanced access to leadership positions, and accepted by the Chief of the Defence Force. The Government adds that under the Women’s Leadership Development Program (WLDP), funding is focused on improving gender equality and providing support for women’s economic empowerment, safety and leadership, in order to contribute to increasing diversity on boards and in management. The Government further indicates that it is committed to supporting women’s participation in high-earning careers through a 13 million Australian dollars (AUD) investment to enhance women’s representation in science, technology, engineering and mathematics (STEM), as well as through entrepreneurship initiatives under the National Innovation and Science Agenda. The Committee, however, notes that ACTU indicates that gender inequality in the workplace remains a significant problem. While recognizing some improvements in gender ratios for senior positions, ACTU expresses concern at the extremely gender segregated industries and occupations. The Committee notes that several UN Treaty Bodies also expressed concern about (i) the industrial and occupational segregation; (ii) the low proportion of girls (less than one in 20, compared with one in five boys) who envisage a career in the field of STEM, in which jobs are higher-paid and in high demand; (iii) the lack of obligations on employers regarding flexible working arrangements, which contributes to the overrepresentation of women in part-time work and lower-paid sectors; as well as (iv) the lack of incentives for the reconciliation of work and family responsibilities (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 43; and E/C.12/AUS/CO/5, 11 July 2017, paragraph 21). The Committee asks the Government to continue to provide information on any legislative, policy or other measures taken to promote equality of treatment and opportunity between men and women in law and in practice, and on the results achieved by such measures, in particular in order to address vertical and horizontal occupational gender segregation, by enhancing women’s access to a wider range of jobs and to jobs at higher levels, in particular in sectors where women are less represented such as the armed forces. It asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, in both the public and private sectors.

The state level. The Committee welcomes the measures implemented by several states, such as in Queensland, New South Wales, Victoria, and Western Australia, to take affirmative actions to promote the representation of women at senior leadership level, in particular in the public sector. It further notes that South Australia and the Australian Capital Territory introduced flexible working arrangements for workers in order to better reconcile work and family responsibilities. The Committee asks the Government to continue to provide information on the policies and programmes implemented to promote equality of opportunity and treatment between men and women in employment and occupation and address occupational gender segregation at state and territory levels, as well as on their impact.

New South Wales. The Committee previously noted that the Government Sector Employment Act 2013, No. 40, deleted the section on equal employment opportunity and the mandate for government agencies to prepare equal employment management plans, as set out in the Anti-Discrimination Act, 1977. It further noted that the Act provides that employees in the Government sector should be recruited and promoted on merit, and that affirmative action measures may be taken to facilitate the employment of persons with a disability, Aboriginal people, Torres Strait Islanders and persons under the age of 25. The Committee notes that the Government refers to the Sector Employment Rules 2014, implementing the Act of 2013, but observes that it does not provide any new information concerning the issue previously raised. The Committee again asks the Government to indicate how discrimination is prohibited and equal opportunity in employment is ensured under this Act, and to supply information on the application of the 2013 Act in practice, including any implementing regulations, as well as any decisions issued by tribunals or administrative bodies.

Tasmania. Gender Equality. The Committee previously noted the 2016 Government’s commitment to a target of 50 per cent of women’s representation across Government’s boards and committees by June 2020, which was supported by the 2015–20 Five Year Plan and the Tasmanian Women’s Plan 2013–18. It notes the Government’s indication that women’s representation on all Government boards and committees has increased from 33 per cent in July 2015 to 40 per cent in April 2018, and that up to 52 per cent of Government business enterprise directors are women as well as 44 per cent of state-owned company directors. The Committee notes that a new Tasmanian Women’s Strategy covers the period 2018–21. The Committee asks the Government to continue to provide information on the development, monitoring and implementation of legislation, policies and plans adopted at the state level to promote gender equality.

Discrimination on the grounds of race, colour, national extraction and religion. The Committee previously requested the Government to provide information on any measures introduced to give effect to the recommendation made by the UN Special Rapporteur on contemporary forms of racism, racial discrimination and xenophobia concerning the possibility of employers undertaking “blind” recruitment as a result of significant likelihood that indigenous Australians, persons of African descent, Asians and Muslims would experience discrimination otherwise. It notes that the Government refers to the Racial Discrimination Act 1975 which prohibits discrimination in employment, in particular in recruitment, on the grounds of race, colour, national extraction and ethnic origin, as well as to a racial discrimination case brought by the Fair Work Ombudsman in which financial penalties were imposed on both the employer and employer operators. The Government adds that, since 2017, specific practices were developed to reach vulnerable and migrant workers and enable them to better understand their rights, such as the creation of an anonymous online reporting tool. These measures have helped to raise awareness among workers on their workplace rights and have made it easier to report alleged breaches. While welcoming this information, the Committee notes that several UN Treaty Bodies and Special Rapporteurs reiterated their concerns about increasing xenophobic hate speech leading to the creation of a negative perception of migrants, as well as reports of discrimination on the basis of ethnic, racial, cultural or religious background and racial profiling, targeting in particular Muslims and persons of African descent. It notes that further concerns were expressed about: (i) the working conditions of migrant workers, particularly those on temporary visas (approximately 1.8 million workers), who receive lower wages and work for longer hours, especially in the construction, agricultural and hospitality industries; as well as (ii) the fact that, owing to heavy reliance on their employers, combined with a lack of knowledge about their rights and entitlements and fear of dismissal, many of those workers refrain from seeking redress, which contributes to increased exploitation by employers (CERD/C/AUS/CO/18-20, 26 December 2017, paragraph 34; CCPR/C/AUS/CO/6, 1 December 2017, paragraph 19; E/C.12/AUS/CO/5, 11 July 2017, paragraph 27; A/HRC/35/41/Add.2, 9 June 2017, paragraph 56; and A/HRC/35/25/Add.3, 24 April 2017, paragraph 95). The Committee asks the Government to provide information on the proactive steps taken to prevent and address discrimination on the grounds of race, colour, national extraction, and religion, in particular by addressing bias and negative attitudes that may lead to discrimination and by promoting equality of opportunity and treatment in employment and occupation of migrant workers, while ensuring that they have access to effective protection and remedies. It asks the Government to provide information on the number, nature and outcome of cases or complaints of discrimination on the grounds of race, colour, national extraction or religion detected or dealt with by the labour inspectors, the courts or any other competent authority.

General observation of 2018. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

The state level. The Committee notes with interest that Victoria has launched a “RecruitSmarter pilot” to introduce a de-identification trial within selected organizations to address unconscious bias in the recruitment process. During the de-identification trial, personal information that could potentially be used to identify an applicant is removed, such as religion, gender, sexual orientation, age, contact details and details of their academic institution. The Victorian Government adds that the pilot results will be analysed shortly and will form the basis for recommendations for best practice for the sectors involved. The Committee asks the Government to provide information on the results of the assessment made of the introduction of a de-identification recruitment process, as well as on any recommendations made or follow-up measures taken or envisaged.