Resources

Equal Opportunity

SA Unions Submission to the Review

of Equal Opportunity Legislation in South Australia

April 2005

The SA Unions is the peak union organisation for South Australia representing 34 unions with over 200,000 union members. The following submission has been developed in consultation with our affiliate unions.

The Equal Opportunity Act is extremely important for workers and union members. Although we are more likely to be involved with the Industrial Relations, Workers Compensation and OHS Acts, unions also use the EO Act to address areas of discrimination at work. We are concerned that the people of South Australia are treated fairly and genuinely receive equal opportunities to participation in a range of areas regardless of their sex, age, race, religion, sexuality, beliefs, political activity, union membership and activity. A number of affiliated unions have also responded to the review. This submission is in addition to those and supportive of them.

Response to the Framework Paper

1. Racial Vilification

The SA Unions supports the area of racial vilification to be included under the Equal Opportunity Act.

The current Racial Vilification Act is extremely strong and the ability to prosecute is supported, however in practice the Act has rarely been used and it is an extremely difficult and expensive law to access. There is a need to improve the ability for people to seek redress for racist victimisation and the EO Act should provide this.

2. Other Forms of Vilification

The SA Unions supports the extension of this model to other areas of vilification such as sexuality, gender identity, disability and HIV/AIDS infection.

3. Time Limits

The SA Unions supports the removal of the 6 month time limit.

We are not persuaded that extending it to twelve months would address all of the issues. Removal of all time limits would be preferable, however allowing for the Commissioner and the Tribunal to extend time limits where there is good reason would be an improvement to the current Act.

4. Definition of Disability

The SA Unions supports the recommendation in the framework paper.

5. Vicarious Liability

The SA Unions supports the recommendations in the framework paper. It is the responsibility of an employer to ensure that their workplace is free from discrimination and should therefore be vicariously liable. For example, in many cases of sexual harassment it is the culture of the workplace which contributes to the harassment occurring. The inclusion of vicarious liability is also an encouragement for employers to establish effective preventative measure which we believe will ensure that workers are aware of the issue, receive training and have established complaint processes.

A recent case where two young work-experience students were sexually harassed and humiliated by workers at a manufacturing plant in the northern suburbs is a good case in point. The employer knew there was a culture of this occurring at the workplace but did not put in place any safeguards for the boys concerned.

In addition, the SA Unions calls for the issue of labour hire and group training companies to be addressed. We favour a solution such as has been identified in the IR jurisdiction with the concept of co-employer liability. This is important to resolve as this form of employment relationship is now extremely common in South Australia.

6. New Grounds of Discrimination

Family Responsibilities

The SA Unions strongly supports the inclusion of discrimination on the grounds of family/caring responsibilities as a ground for discrimination.

This is a common area of discrimination and well overdue to be included in the Act. The definition of family should be broad to include a wide range of relationships including same sex couples, adoption and also family responsibilities as defined by a range of cultures such as the need for Aboriginal people to attend funerals and the responsibilities in extended families.

There is also a need for the inclusion of indirect discrimination in this area of discrimination.

Breast Feeding

We also strongly support the proposal that breastfeeding be specifically included in the Act.

Location

The SA Unions supports the inclusion of local origin as a ground of discrimination.

This ground is of particular relevance to South Australia as we are an urbanised state with fewer services being available to people in remote and rural areas. There is also evidence that some people are discriminated in relation to employment because they come from certain stigmatised suburbs.

Potential Pregnancy

The SA Unions strongly supports this as a ground to be included in the Act.

It is common for unions to receive complaints from members who are women of child bearing age who have been denied opportunity to employment, promotion and training because they may become pregnant in the near future. This area needs to be addressed.

The Commonwealth Sex Discrimination Act definition is a good one and should be used.

Political Belief or Activity

The SA Unions supports the inclusion of this as a ground under the EO Act. The discussion in the framework paper about exceptions where it is a genuine occupational requirement is also supported. The Queensland Act seems to adequately cover this area.

Union membership as a requirement of employment should also be included as an exception of this requirement if it is negotiated in an agreement or included as a requirement of an award.

Industrial Activity

This is a much needed ground to be included in the EO Act. The current industrial climate in this country has encouraged employers to target and victimise union members, representatives and delegates because of their union membership and/or their activities.

Unions in SA have witnessed such things as employers telling workers they can’t have a job if they join the union, refusing promotion to union delegates, harassment and victimisation of union delegates and dismissing union members and delegates because they are members or because they took part in industrial action. The right of workers to engage in union activity without victimisation is enshrined in ILO conventions ratified by the Australian Government. Discrimination on the grounds of union membership and activity should be included in the EO Act.

This should include membership, involvement and industrial activity.

Irrelevant Criminal Record

The SA Unions supports the inclusion of this as a ground in the EO Act.

Irrelevant Medical Record

The SA Unions does not agree that the Commonwealth Disability Discrimination Act covers this area adequately and calls on the government to include it as a ground. A person’s medical records can contain a range of things including the seeking of tests for HIV and other sexually transmitted diseases. These tests may prove negative but the act of seeking of them may cause employers and insurance companies to class people in “at risk” groups and refuse them employment or services.

A bigger issue than that raised in the framework paper is that the current Act has an exemption in this area for insurance companies. There is no reason why insurance companies should be able to discriminate on the basis of an “at risk” group and deny them insurance. A recent example of this situation was the woman who was denied travel insurance because she had breast cancer. She won a dispute in the Federal Court.

Occupation or Trade

Discrimination could occur on the basis of occupation or trade in the provision of goods and services and should be included as a ground in the EO Act. This may be true particularly in relation to the provision of accommodation where certain stereotypes around some occupations may result in denying people rental accommodation. It can also occur where a person is denied a job because they are considered “overqualified”.

Physical Features

The SA Unions believes this should be included as a ground in the EO Act. Women and young people and people who are overweight face this form of discrimination most commonly. There is much written about body image and pressure on women to conform to particular body size and shape.

Women are therefore often stereotyped as being unacceptable to customers when they do not fit this stereotype.

There are many cases of young people being refused work, dismissed or suspended and expelled from schools because of their hair style, or such things as piercings.

Overweight or obese people often face discrimination in applying for jobs because the employer may consider them a health risk, even if this is not the case.

If this was to become a ground exceptions could apply such as in the context of someone’s ability to perform a job or provide a service. They should not extend to judgments over whether a person has access to a service or goods.

Independent Contractors

The SA Unions supports the recommendation in the framework paper.

This change would bring the EO Act into line with proposed changes in the IR Act, Workers Compensation Act and OHS Acts which attempt to better reflect the realties of the current employment relationships.

Sexuality

The SA Unions recommends that discrimination should be unlawful on the grounds of sexuality without exceptions for religion, associations, appearance or dress. The only exceptions that we would support are in the case of dress where it is necessary to perform particular tasks (as per the Victorian legislation) and also where associations are formed for the purpose of having a supportive environment to victims of negative discrimination due to sexuality.

Religion

This area has not been mentioned in the framework paper. We assume that this is because the Government decided not to proceed with this area following consultation. We ask that this be reconsidered and that a ground of religion be included in the EO Act. This ground is included in a number of other state jurisdictions. It is also crucial in our view to provide protection from discrimination for particular groups in the community who face prejudice because of their religion. Muslim people are at greatest risk at the moment.

7. Support and Advocacy

The majority of people accessing the EO Act are those who are victims of discrimination and have little structural power. They are more likely to also have fewer financial and legal resources. If they are union members, their union will also incur considerable expense in proceeding with a case. There should be no impediment to pursuing a case under the EO Act. The expense of pursuing a case should therefore not be a barrier. We suggest that a schedule of fees should be developed and paid for assistance and advocacy on behalf of victims of discrimination as is the case under the Workers Compensation and Rehabilitation Act.

8. Complaint Handling

The SA Unions and affiliated unions are currently extremely frustrated at the length of time and delays in having matters addressed through the EO Commission. Many of the issues we deal with are related to work and employment and require speedy resolution. This means we often choose not to use this area of law even if there is a very good case to answer because of the delays.

We therefore would support statutory timeframes for the process of complaint handling as well as a requirement to hold a preliminary conference within 6 weeks of lodgment.

Martin Report Recommendations

1. Sexual Harassment

The SA Unions supports the inclusion of a better definition of sexual harassment in the Act. The current definition is outdated and we find that unions and organisations like the Working Women’s Centre often use the federal jurisdiction rather than the state Act. The Commonwealth definition is preferable, however we would go further and add a provision that written or produced material can constitute sexual harassment and the word ‘unwelcomed’ and ‘repeated’ be removed as recommended by the Martin Report.

2 . Access to Premises