Unlawful Workplace Discrimination in Australia - Case Study Example

Unlawful Workplace Discrimination in Australia Australia has to undertake further steps to prevent unlawful discrimination at the work place. The following discussion establishes this contention. Introduction Discrimination can be described as treating a group of people or a person less favourably than another group of individuals or a person on the basis of their background or certain personal traits. The federal discrimination laws safeguard people from discrimination that is based upon their race, ethnicity or immigrant status, gender, pregnancy, marital status, age, disability, intersex status, and gender identity[Aus154]. In this regard, the Australian Human Rights Commission oversees the implementation of federal policies that promote human rights and anti-discrimination. These federal laws are fortified by the legislation passed by the individual states. The Workplace Gender Equality Act 2012 serves to strengthen and consolidate the policy that endeavours to eliminate discrimination on the basis of gender in employment issues[Rac13]. Nevertheless, it is insufficient for an organisation to be committed, to the extent necessary, towards the promotion of equality and full participation, with respect to addressing discrimination. Such organisations would require to engage their workers in identifying the manner of manifestation of discrimination at the work place. Thereafter, the necessary modifications to conditions, practices and underlying values would have to be recognised and implemented[Smi143]. Strictly speaking, a rule that merely prohibits discrimination would have scant effect upon the uncommitted. As such, in order to compel or induce organisations to identify and address discrimination issues, the adoption of alternative regulatory approaches is essential. Thus, laws that impose positive duties on employers, including the Workplace Gender Equality Act 2012, have a major complementary function in dealing with discrimination. Such positive duty approaches facilitate an approach that is more systematic and which is not restricted to individual events[Smi143]. However, the current anti-discrimination laws contain several regulatory failures. For instance, the Australian laws prohibit discrimination without assisting employers to identify and deal with discrimination, as it comes to the fore at the workplace. Something more than proscription is the need of the hour, and it is necessary to have additional regulation that promotes commitment towards the goal of gender equality and work, as well as making it possible to realise this goal[Smi143]. Nevertheless, the regulatory framework of discrimination laws can be improved by guidance materials. Such guidance has to be with regard to legislative translation, rule illustration and best practices. These could affect compliance hurdles, such as absence of understanding regarding the notion of discrimination, and lack of knowledge and skills to promote more friendly methods of working. [Smi143]. The emphasis of legal regulation has to shift from rules to capacity and motivations, if effectiveness is to be attained. Disability Harassment The Disability Discrimination Act considers the various ramifications of harassment against individuals with disabilities, as depicted in the ruling in Clack v Command Recruitment Group Pty Ltd. Due to the provisions of this Act, it has been conceded that individuals with a disability are subjected to harassment due to their disability. In this context, it is necessary for the conduct to be in relation to the disability of the complainant. Consequently, merely identifying a person as being disabled may not be regarded as harassment. This was the gist of the ruling in King v Gosewisch and McCormack v Commonwealth[Ron12]. Employers can be held vicariously liable for their employees’ discriminatory acts, and this includes instances of harassment. However, employers can circumvent such liability if they can establish that they had adopted all reasonable measures to prevent such acts, or in the alternative, had undertaken all reasonable precautions and exercised due diligence to prevent such conduct[Aus08]. As such, the onus rests upon the employers to prove that they had taken all reasonable steps or precautions, and exercised due diligence, in this regard. In Vance v State Rail Authority, it was held that case law with regard to the test of reasonable precautions and due diligence emphasised the importance of implementing effective education programmes to hinder discriminatory conduct by employees. In addition, this case law highlighted the inevitability of such programmes for employers, in order to obviate being held vicariously liable for their employees’ acts[Aus08]. This test proves to be an objective test that is founded upon the evidence furnished by employers, with respect to the measures adopted by them to ensure that their employees had been apprised of what would be deemed to be discriminatory conduct, the inexcusable nature of such conduct, and that effective procedures had been implemented to ensure that such conduct did not transpire. [Aus08]. The required level was held to be determined by solely reasonableness and not perfection. Sexual Harassment Moreover, the Sex Discrimination Act 1984, provides all round protection to female workers. Such protection ranges from subordination on grounds of gender, pregnancy, marital status, potential pregnancy, family responsibilities, or with respect to sexual harassment. In conjunction with this Act, the Australian Human Rights Commission describes sexual harassment as unwelcome or unwanted sexual conduct that causes an individual to feel offended, insulted or intimidated. It further states that sexual harassment is not interaction, flirtation or friendship that is consensual or mutual[Rac13]. On the other hand, sexual harassment constitutes a variety of sex discrimination. Furthermore, in Australia, 50% of the females reported having been subjected to discrimination at their workplace, during their pregnancy, parental leave or upon returning to work. This had been revealed by a national review, namely Supporting Working Parents: Pregnancy and Return to Work National Review. The respondents to this survey had been queried regarding their experiences of workplace discrimination[Aus1415]. In this context, Elizabeth Broderick, the Sex Discrimination Commissioner, had stated that the results of the national review indicated that discrimination had a negative impact upon women, their families, businesses, the national economy and society as a whole. Although, discrimination was seen to be present at every stage, the majority of such incidents were reported with respect to return to work (35%), parental leave (32%), and during pregnancy (27%)[Aus1415]. In addition, the complainant in Nicholls v Ministry of Education contended that she had been unable to work full time, due to her family responsibilities. Furthermore, she claimed that the respondent’s employment policies were tantamount to indirect discrimination on the ground of sex, as these policies obliged her to work full time if she aspired to regain permanent status. The Western Australia Equal Opportunity Tribunal determined that the employment policies of the respondent constituted indirect discrimination against Nicholls on the basis of her sex. Nicholls, due to her family responsibilities, could not comply with these policies. Therefore, she had suffered employment detriment. Consequently, The Western Australia Equal Opportunity Tribunal awarded her $18,000[Hal98]. Moreover, in McLaren v Zucco and Daniels v Hunter Water Board, the contention that lascivious conversations constituted part of the environment or culture of a particular industry, and therefore did not constitute sexual harassment was rejected. All the same, there had been cases, wherein it had been considered whether sexual harassment was displeasing. Thus, in Elliott v Nanda and Horman v Distribution Group Ltd, the court considered whether sexual harassment could be said to have transpired, in view of the specific context and general workplace culture[Ron12]. Furthermore, in Hickie v Hunt and Hunt, Hickie succeeded in her claim of having been discriminated against on grounds of marital status, sex, potential pregnancy, pregnancy and family responsibility. She was awarded $95,000 as compensation. This included lost earnings of $40,000 for the period of a year after the termination of her contract, $30,000 towards future loss of earnings, and $25,000 as damages for distress, humiliation, and damage to personal reputation[Hal98]. Racial Harassment In addition, the Racial Discrimination Act 1975, does not provide an explicit statutory scheme that refers to harassment on the basis of race. Therefore, recourse has to be taken to the more general provisions of direct discrimination under this Act[Ron12]. Moreover, several exceptions, exemptions and defences are provided in the anti-discrimination laws. When these are applicable, a complaint of discrimination becomes unsustainable, regardless of its validity otherwise. Some of the exceptions and defences in the anti-discrimination legislation of Australia include the occupational health and safety legislation. Under certain circumstances, an entity can apply to the agency administering anti-discrimination legislation for exemption regarding a specific activity[Aus03]. Furthermore, with regard to the Disability Discrimination Act and the Sex Discrimination Act, an application can be made to the Human Rights and Equal Opportunity Commission for obtaining a temporary exemption from the provisions of such legislation. In the event of the exemption not being in contradiction with the objectives of the legislation, the Human Rights and Equal Opportunity Commission could grant an exemption up to a period of five years[Aus03]. Conclusion Due to exemptions under the anti-discrimination laws, organisations are able to circumvent these laws to a considerable extent. By stating some reason or the other, they find exemptions for their failure to apply anti-discrimination laws in their organisations, in specific cases. As such, ambiguity in the provisions of the law defining disability and exemptions, have rendered the discrimination laws ineffective. The case law discussed above discloses that discrimination laws are not fully effective, on account of various reasons in Australia. Thus, it can be surmised that Australia has to undertake further steps to prevent unlawful discrimination at the work place. References Australian Human Rights Commission, 2008. The Right to a Discrimination-Free Workplace. [online] Available at: [Accessed 9 December 2015]. Australian Human Rights Commission, 2015. Workplace discrimination, harassment and bullying. [online] Available at: [Accessed 7 December 2015]. Australian Law Reform Commission, 2003. 09. Anti-Discrimination Law. [online] Available at: [Accessed 9 December 2015]. Australian Nursing and Midwifery Federation, 2014. Pregnancy and return to work discrimination. Australian Nursing & Midwifery Journal, 21(10), p. 9. Clack v Command Recruitment Group Pty Ltd (2010) FMCA 42. Daniels v Hunter Water Board (1994) EOC ¶ 92-626. Elliott v Nanda (2001) 111 FCR 240. Halliday, S., 1998. Pregnancy Discrimination: Hickie v Hunt and Hunt. [online] Available at: [Accessed 9 December 2015]. Hickie v Hunt and Hunt (1998) HREOCA 8 . Horman v Distribution Group Ltd (2001) FMCA 52. King v Gosewisch (2008) FMCA 1221. Limpangog, P. C., 2013. Racialised and Gendered Workplace Discrimination: The Case of Skilled Filipina Immigrants in Melbourne, Australia. Journal of Workplace Rights, 17(2), pp. 191-218. McCormack v Commonwealth (2007) FMCA 1245. McLaren v Zucco (1992) EOC ¶ 92-650. Nicholls v Ministry for Education (1993) EOC 92 513. Parliament of Australia, 1975. Racial Discrimination Act. Canberra, Australia: Commonwealth of Australia. Parliament of Australia, 1992. Disability Discrimination Act. Canberra, Australia: Commonwealth of Australia. Ronalds, C. & Raper, E., 2012. Discrimination Law and Practice. 4th ed. Annandale, NSW, Australia: Federation Press. Smith, B., 2014. How might information bolster anti-discrimination laws to promote more family-friendly workplaces?. Journal of Industrial Relations, 56(4), pp. 547-565. Read More