| Issue 62 (WAIS 2) Contents
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Commonwealth
Anti-Discrimination Legislation and Processes for Complaints and Mediation
Jodie Ball
Human Rights
and Equal
Opportunity
Commission
Commonwealth anti-discrimination law and the Sex Discrimination Act 1984
The Human Rights and Equal Opportunity Commission (the Commission) is responsible for investigating and conciliating complaints which allege discrimination or a breach of human rights under the terms of the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 (the SDA), the Disability Discrimination Act 1992 and the Human Rights and Equal Opportunity Commission Act 1986. At its simplest, anti-discrimination law operates by providing that it is against the law to treat a person with a particular attribute less favourably than you would a person without this attribute in certain areas of public life. For example, it is against the law to terminate a woman’s employment because she is pregnant. Commission receives about pregnancy discrimination include allegations that a woman has been: .Dismissed after she advised her managers of her pregnancy .Given fewer shifts or less demanding work because of her pregnancy .Made redundant because of her pregnancy or because she is on maternity leave. Not being provided with the same position or a comparable position when returning to work after a period of maternity leave The Commission is also receiving a growing number of complaints that relate to difficulties women experience balancing work and
Complaints under the Sex Discrimination Act 1984
The Sex Discrimination Act 1984 makes it against the law to either directly or indirectly discriminate against a person on the basis of their sex, marital status, pregnancy or potential pregnancy in many areas of public life including employment, education, provision of goods, services and facilities, administration of Commonwealth laws and programs, clubs and accommodation. It is also unlawful to dismiss a person from their employment on the grounds of their family responsibilities. Further, sexual harassment is also against the law. Under the SDA sexual harassment is defined as unwelcome conduct of a sexual nature, such as sexual advances or requests for sexual favours, which a reasonable person would anticipate that the person harassed would be offended or humiliated by the behaviour.
The vast majority of complaints under the SDA are made by women (89% in the last reporting year) and relate to the area of employment (85%). The largest ground of complaint is sexual harassment, followed by complaints of pregnancy discrimination. Over the last financial year there has been a large increase in the number of complaints alleging pregnancy discrimination, increasing from 16% of complaints made under the SDA to 30%. The sorts of complaints the Commission receives about pregnancy discrimination include allegations that a woman has been:
• Dismissed after she advised her managers of her pregnancy
• Given fewer shifts or less demanding work because of her pregnancy
• Made redundant because of her pregnancy or because she is on maternity leave
• Not being provided with the same position or a comparable position when returning to work after a period of maternity leave
The Commission is also receiving a growing number of complaints that relate to difficulties women experience balancing work and family responsibilities and the need for part-time work and flexible work arrangements. The types of complaints lodged under the SDA suggests that for women the area of public life where they are still struggling to achieve equality is the workplace. The Commission receives a number of complaints from women working in the areas of science, technology and engineering. The types of allegations made by women in complaints to the Commission under the SDA include the following:
• Being paid less than male co-workers who are performing the same work
• Being harassed and bullied by managers and male co-workers because of your sex
• Not being promoted because you are a woman
• Pregnancy discrimination, including being transferred out of a position because of the risks chemicals were thought to pose to the unborn child
• Sexual harassment and sexually hostile work environments, including pornography in the workplace.
How complaints are handled
If a person wants to make a complaint under Commonwealth anti-discrimination law, he or she must firstly lodge the complaint with the Human Rights and Equal Opportunity Commission. Under the law a complaint must be in writing and must generally be made by a person who has been personally affected by the alleged unlawful discrimination.
Once a complaint is received, the Commission must refer the complaint to the President. The President must then inquire into and attempt to resolve the complaint through conciliation. In general, conciliation is a process where the parties to the complaint come together with a conciliator who assists the parties to identify the issues in dispute, discuss options for resolving the dispute and try to reach an agreement. In some cases an attempt will be made to resolve a complaint either prior to commencement of a formal investigation or before a response to the complaint has been received. This may occur at the instigation of the Commission or the parties.
The President may terminate the complaint if there is no reasonable prospect of settling the complaint by conciliation. The President may also, at any time during the inquiry, terminate the complaint for a number of other reasons including the discrimination is not unlawful, the complaint was made more that 12 months after the alleged discrimination took place, the complaint is lacking in substance, or the complaint has been dealt with or can be dealt with through an alternative remedy.
The President has to give notice of her decision to terminate a complaint in writing. Once the termination notice has been issued, the affected person may commence proceedings in the Federal Court or the Federal Magistrates Court. Applications must be made within 28 days of the date of the termination notice.
To find out more about what is covered by Commonwealth anti-discrimination law or the Commission’s complaint handling processes you can:
• call the Complaints Infoline: 1300 656 419 or
• visit the Commissions’ website : http://www.humanrights.gov.au