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Norris, Rae --- "Human Rights and Employment: an Exploration of Some Issues" [2000] AUJlHRights 7; (2000) 6(1) Australian Journal of Human Rights 123

Human Rights and Employment: An Exploration of Some Issues

Rae Norris[*]

• Abstract
• Australia’s International Human Rights Obligations
• Human Rights Conventions and Their Relevance to Employment
• Reasonable Expectations
• Human Rights and Australian Domestic Law
• Racial Discrimination Act 1975 (RDA)
• Sex Discrimination Act 1984 (SDA)
• Affirmative Action ( Equal Employment Opportunity for Women) Act 1986 (AAA)
• Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOCA)
• Public Service Act 1922 (PSA)
• Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) (EEOA)
• Workplace Relations Act 1996 (Cth) (WRA)
• Employment Rights and Relevant Legislation
• References

Abstract

A variety of international conventions, declarations and agreements have been struck since the Universal Declaration of Human Rights was formulated in 1948; these instruments include the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.[1] The latter three documents together form the international Bill of Rights, ‘the currently definitive international statement of the scope of human rights’.[2] These and other treaties and conventions relating to human rights and signed by Australia have implications for the employment relationship. The purpose of this paper is to identify the rights pertaining to employment which are contained in various international instruments ratified by Australia and to examine the extent to which those rights are protected in the major Australian federal laws relating to employment rights.[3]

Australia’s International Human Rights Obligations

Australia is signatory to a number of United Nations and other human rights instruments variously named declarations, covenants and conventions; these, their abbreviations and their status in Australia are listed in the table below.

According to Funder:

Treaties are binding agreements and rules entered into by nations to govern their international relations. Whether called 'treaties', 'conventions', 'protocols', 'covenants' ..., their distinguishing feature is that they are intended to create binding obligations between countries (analogous to a contract in domestic law).[4]

In practice in Australia, despite the status attributed to international instruments by Funder, these instruments do not guarantee rights to Australian citizens, unless:

• they are self-executing, as in the case of the Optional Protocol, which provides Australian citizens with the right to take a complaint of violation of rights given under the International Covenant on Civil and Political Rights once all domestic remedies have been exhausted; [5] or
• the rights they enumerate have been enacted in Australian domestic law.[6] This has been done to only a limited degree for those instruments Australia is signatory to, a point which will be explored in more detail later in this paper.

Until 1995, it could have been expected that rights enumerated in international instruments would be upheld in Australia as a signatory nation through appropriate administrative action in relevant instances. This was tested in the case of Mr Teoh, who appealed a decision to deport him on the grounds that to do so was not in the interests of his children and therefore was in breach of the International Covenant on the Rights of the Child. In its decision on this case, the High Court found, in part, that

ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent any statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention.[7]

Attempts to legislatively abolish this means of extending human rights to Australian citizens, through explicitly or implicitly requiring administrators of Australian law and Government policy to abide by the provisions of Conventions to which Australia in signatory in their decision making on relevant matters, have been made by the successive Australian government since 1995 in response to the High Court decision in the Teoh case. In June 1995, legislation was introduced into Parliament to close the loophole created by the decision in Mr Teoh’s case.

The Administrative Decisions (Effect of International Instruments) Bill 1995 provides that:

The fact that Australia is bound by, or a party to, a particular international instrument, or that an enactment reproduces or refers to a particular international instrument, does not give rise to a legitimate expectation, on the part of any person, that:

(a) an administrative decision will be made in conformity with the requirements of that instrument; or
(b) if the decision were to be contrary to any of those requirements, any person affected by the decision would be given notice and an adequate opportunity to present a case against the taking of such a course. [8]

This legislation lapsed in the Senate when federal elections were called in February 1996, but was resurrected by the current Attorney General and Minister for Foreign Affairs. On February 25 1997 these Ministers issued a joint Executive Statement and followed this with the introduction of legislation into the Commonwealth Parliament. In the joint statement, they affirmed that ‘this statement, which replaces the statement issued by the previous Government, will continue to ensure that treaties do not create legitimate expectations in administrative law, as well as emphasising the proper role of the Parliament in the implementation of treaties.’ They also stated:

In relation to administrative decisions made in the period between 10 May 1995 and today reliance will continue to be placed on the joint statement made by the then Minister for Foreign Affairs and the then Attorney-General on 10 May 1995.[9]

Thus, the above decision of the current and former governments in response to the Teoh decision in the High Court is to be taken as having commenced on 10 May 1995 and to have operated continuously since, despite the legislation supporting the decision having still not passed through Parliament.

Therefore, as it appears to stand at this time, Australia’s ratification of human rights agreements means little in terms of automatically extending those rights to its citizens, unless the government of the day or of a later time chooses to enact specific legislation which extends those rights to all Australians.

However, despite these limitations, international human rights instruments do have an important role irrespective of the degree to which Australians’ rights are legislatively guaranteed - they set an international standard which all signatory nations can strive to achieve in the domestic sphere. My purpose in this paper is to explore some of the rights enumerated in the various human rights instruments listed above which are relevant to the area of employment. The relevant domestic legislation will then be examined to determine the extent to which these specific rights are legitimated in Australian law.

Human Rights Conventions and Their Relevance to Employment

From its inception in 1948, the United Nations has included employment in its areas of concern. In addition to general points in its Charter relating to promotion of ‘social progress and better standards of life in larger freedom’ and ‘the economic and social advancement of all peoples’,[10] in relation to employment, Article 55 states in part:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

a. Higher standards of living, full employment and conditions of economic and social progress and development...[11]

The UDHR includes the following clauses relating to employment:

Article23

1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and join trade unions for the protection of his interests.

Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Since these early instruments were formulated, various other international instruments have restated and reinforced these basic rights. Among the instruments which are examined below in the context of employment are the ICCPR, the ICESCR, ILO 111, the ICERD, the CEDAW, and ILO 156. This is not an exhaustive listing of all international instruments which have relevance to employment.[12] However it is inclusive of the major instruments and is sufficient to draw out some common themes. Before examining these common elements, it should be noted that, in 1993, the World Conference on Human Rights held in Vienna reaffirmed the rights set out in Human Rights Conventions and emphasised the universality and indivisibility of human rights:

Article 1
The World Conference on Human Rights reaffirms the solemn commitment of all States to fulfil their obligations to promote universal respect for, and observance and protection of, all human rights and fundamental freedoms for all in accordance with the Charter [of the United Nations], other instruments relating to human rights, and international law. The universal nature of these rights and freedoms is beyond doubt.[13]

Article 4 of the same document states in part:

All human rights are universal, indivisible and interdependent and interrelated... it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.[14]

Reasonable Expectations

From the relevant international instruments, it is possible to derive a set of criteria that could reasonably be expected to be reflected in either Australian domestic legislation pertaining to discrimination, or in legislation underpinning employment programs designed to redress past discrimination against specific groups such as women and Indigenous Australians.

That it is reasonable to draw such a set of criteria on which to judge Australia’s performance in this area of human rights is supported by statements in the international instruments themselves. Each of the above instruments includes articles which indicate the intention of the drafters that signatory nations which ratify or accede to the instruments will do so with the clear intention of implementing them effectively.[15]

The High Court, in Teoh’s Case, gave consideration to the issue of ‘legitimate expectations’:

Their Honours held .. that the presence of [a] legitimate expectation does not compel the decision-maker to act in a way that complies with that expectation. To require compliance would be to incorporate 'the provisions of the unincorporated convention into our municipal law'. All that the decision-maker is required to do by way of procedural fairness, if he or she is proposing to make a decision inconsistent with the legitimate expectation, is to provide the affected person with the opportunity to present a case for not adopting the proposed course.[16]

When speaking of reasonable expectations there is no intention to imply that there is legal compulsion on the part of government and policy makers to adhere to the letter of the international instrument in question. It is a consequence of the way international instruments are implemented in Australia that they do not guarantee, of and by themselves, any rights to Australian citizens; this contrasts with practice in a number of other countries where signing of international instruments results in automatic importation of the rights contained therein into domestic law.[17] However, as noted above, the international instruments provide a standard against which individual signatory nations can legitimately be judged.[18] Thus, it could be reasonably expected that a signatory nation would make some effort to apply the standards implied in a ratified instrument to its citizens.

In the case of employment, the standards that can be derived from relevant instruments and which can reasonably be expected to be applied through law or practice in Australia are:

• promotion of social and economic progress and development for all peoples;[19]
• the right to material well-being and economic security;[20]
• the right to work[21] and to:
• freedom from discrimination in employment, including termination of employment, on grounds including sex, race, family responsibilities, marital status and pregnancy;[22]
• just and favourable conditions of work;[23]
• just and favourable remuneration, including equal pay for equal work;[24]
• freedom of association and the right to form and join trade unions;[25]
• free choice/acceptance of employment and occupation without force or compulsion;[26]
• technical and vocational guidance and training;[27]
• a decent living;[28]
• safe and healthy working conditions, including for women in relation to reproduction;[29]
• equal opportunity for employment and promotion;[30]
• reasonable working hours and paid leave;[31]
• paid or supported maternity leave;[32]
• a national body to promote and direct observance of these rights;[33]
• special and concrete measures to eliminate discrimination, to redress past discrimination and/or to meet the requirements of particular groups;[34]
• programs for women take into account the needs of women of all races and from rural areas.[35][36]

The question to ask now is: how well are these rights reflected in relevant domestic laws?

Human Rights and Australian Domestic Law

This survey is confined to a limited range of federal legislation directly applicable to the area of employment rights.[37] The particular pieces of Commonwealth legislation which are directly relevant in the context of this paper are:

• the Racial Discrimination Act 1975 (RDA);
• the Sex Discrimination Act 1984 (SDA);
• the Affirmative Action ( Equal Employment Opportunity for Women) Act 1986 (AAA);
• the Human Rights and Equal Opportunity Commission Act 1986 (HREOCA);
• the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (EEOA);
• Section 22B of the Public Service Act 1922 (PSA); and
• the Workplace Relations Act 1996 (WRA).

Racial Discrimination Act 1975 (RDA)

This Act prohibits both direct and indirect discrimination on the grounds of the race, colour, descent or national or ethnic origin of a person[38] and refers to human rights as being those rights referred to in the Convention on the Elimination of All Forms of Racial Discrimination (ICERD) which is appended as a schedule to the Act.[39] In relation to employment, Section 14 of the Act specifically refers to the right to join trade unions, while Section 15 prohibits employers from discriminating on the grounds of race, colour or national or ethnic origin in access to employment on the same terms as another person; employers must also provide equal access to opportunities for training and promotion.[40] Employment agencies which procure employment for others and employer and employee organizations are also prohibited from discriminating on the grounds of race, as defined in the Act.[41] Employers can be held vicariously liable for discriminatory acts of their employees or agents, unless they have taken all reasonable steps to prevent that discrimination.[42]

The RDA establishes a Race Discrimination Commission, the functions of which include inquiry into alleged breaches of the Act and other matters referred by the Commissioner or the Minister, promotion of acceptance of and compliance with the Act, research and education about the Convention and to combat racial discrimination and prejudice. In respect to inquiries conducted by the Commissioner, they are initiated by either the receipt of a complaint or by the Commission referring a matter where an act in breach of the Act is believed to have occurred.[43]

In regard to employment, the RDA is interesting more for what it fails to address than for what it contains. There is no requirement in this Act for employers to take any action to redress past discrimination. The only incentives to take a proactive stance on issues of racism at work is the avoidance of the vicarious liability clause; this clause makes it advisable for but does not compel employers to take action to prevent racial discrimination by their employees or agents. The risks of not taking any such action are minimal; only if a complaint is made by a person who believes that an act of discrimination has occurred and the finding is in favour of the complainant might an employer be penalised.[44] There is no requirement that employers take special measures to redress the effects of past discrimination or to implement programs to improve the employment opportunities or treatment at work of members of racial or ethnic groups.

Since 1995 the RDA has been under review, with the report of the review due to be completed by mid-1997. Papers from a seminar conducted as part of the review process have been published, providing some indication of the likely thrust of the review’s final report. There is recognition that thinking about human rights has advanced considerably since the RDA came into effect in 1975, that the RDA inadequately implements the ICERD[45] and that there are significant and disturbing disparities between the RDA and the Sex Discrimination Act, to the extent that ‘race discrimination seems to be considered more trivial than other forms of discrimination’.[46] It is also acknowledged that ‘there are now few constitutional limitations on the Commonwealth’s power to implement international conventions’,[47] indicating some reason for optimism that a revamped RDA better reflecting the ICERD may result. However, as the review report has not been made public nor have any public statements been made about it by the Race Discrimination Commissioner, and no change to the RDA has yet eventuated, that optimism remains on hold.

Some impetus to improvement in the legislation may be provided by the fact that, in 1993, Australia recognised the competence of the United Nations Committee on the Elimination of Racial Discrimination to receive and consider complaints from individuals and groups who believe their human rights under the ICERD have been violated.[48] However, such optimism may be misplaced in a country where the current Prime Minister, in the midst of a debate on racism in this country, was ‘heralding the death of “political correctness”, and applauding the new climate of “free speech”.’[49]

Sex Discrimination Act 1984 (SDA)

The SDA prohibits discrimination on the grounds of:

• sex, which includes characteristics generally shared by or imputed to persons of one sex;[50]
• marital status, which includes characteristics generally shared by or imputed to persons of a particular marital status;[51]
• pregnancy or potential pregnancy, which includes characteristics generally shared by or imputed to persons who are pregnant or potentially pregnant;[52]
• family responsibilities, which includes characteristics generally shared by or imputed to persons with family responsibilities[53] as defined in the Act; that is people with responsibility to care for or support a dependent child or any other immediate family member[54] such as a spouse, adult child, parent, grandparent, grandchild or sibling of the employee or his/her spouse.[55]

Section 7D allows for special measures to be taken to achieve substantive equality for any of the groups covered by the Act until such measures have achieved their aim.

In relation to employment, Section 14 prohibits discrimination in relation to offering employment and Section 14(2) prohibits discrimination in terms and conditions of employment, access to promotion, transfer or training or other benefits, dismissal or any other detriment, on the grounds of sex, marital status, pregnancy or potential pregnancy. It is unlawful to discriminate on the grounds of family responsibilities only by dismissing an employee.[56] The Act also covers commission agents, contract workers, partnerships, qualifying bodies, organisations registered under the Workplace Relations Act 1996 (Cth) and employment agencies, prohibiting discrimination on all grounds covered in the Act except family responsibilities.[57] Division 3 of the SDA prohibits sexual harassment by employers and employees, and covers the same groups as mentioned above.

The Act confers on the Human Rights and Equal Opportunity Commission functions which include:

• inquiry into alleged breaches of the Act and other matters referred by the Commissioner or the Minister;
• promotion of acceptance of and compliance with the Act;
• research and education to promote the purposes of the Act;
• examination of proposed or existing enactments for consistency with the Act;
• recommending action that should be taken by the Parliament or the Commonwealth on matters relating to discrimination on all grounds covered in the Act except family responsibilities;
• preparing guidelines for avoidance of discrimination on all grounds covered in the Act except family responsibilities.[58]

Complaints received by the Commission from an aggrieved individual, group or class of persons, or lodged by a trade union on behalf of one or more complainants, are dealt with by the Sex Discrimination Commissioner who endeavours to resolve them by conciliation. Complaints about discrimination in awards or certified agreements must be referred to the Industrial Relations Commission.[59] Under Section 106, employers are vicariously liable for discriminatory acts committed by an employee or agent, unless it can be established that the employer took all reasonable steps to prevent the employee or agent from committing such acts.

Further comments are included below in relation to the Affirmative Action Act, the other Act which arises from Australia’s signing of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), but some important points need to be raised here. The latter instrument is about eliminating discrimination against women; however the SDA is directed at discrimination against both women and men, and could therefore be seen to water down the intentions of the CEDAW. The CEDAW refers in its Preamble to the elimination of discrimination based on race, ‘emphasizing that the eradication of apartheid, all forms of racism, racial discrimination... will promote social progress and development and as a consequence will contribute to the attainment of full equality between men and women’.

But there is no reference to the RDA in the SDA; thus the intersection between these two forms of discrimination, both of which Indigenous and ethnic women may be subject to, is not acknowledged in Australian domestic law pertaining to the prohibition of discrimination.[60]

Another issue of potential impact on ethnic and Indigenous people specifically is the definition of ‘immediate family’ in the SDA. In many kinship systems, the meaning of ‘family’ is far broader than that included in the Act; the Act’s coverage is therefore too narrow to encompass protection against discrimination on the grounds of family responsibilities as they are experienced daily by many ethnic and Indigenous workers. The impact of this less-than-inclusive definition is greatly limited, however, by the inclusion of this ground only in regard to protection against discriminatory dismissal.[61]

Affirmative Action ( Equal Employment Opportunity for Women) Act 1986 (AAA)

The purpose of this Act is to require employers of 100 or more employees, higher education institutions, trade unions and some other public sector employers to develop, implement and continuously review an ‘affirmative action program’, that is:
a program designed to ensure that -

(a) appropriate action is taken to eliminate discrimination by the relevant employer against women in relation to employment matters; and
(b) measures are taken by the relevant employer to promote equal opportunity for women in relation to employment matters.[62]

Discrimination means discrimination on grounds of sex, marital status, pregnancy and potential pregnancy, as defined in the SDA.[63] ‘Employment matters’ means:

(a) the recruitment procedure, and selection criteria, for appointment or engagement of persons as employees;
(b) the promotion and transfer of employees;
(c) training and staff development for employees; and
(d) conditions of service of employees.[64]

Section 5(9) refers to the AAA’s role in giving effect to the CEDAW, which is a schedule to the SDA but not to this Act. Section 8 lays out the requirements of affirmative action programs. They must include a policy on affirmative action for women; delegation of responsibility for development, implementation and continuous review of the program to a senior manager; consultation with staff, particularly women, and relevant unions; collection and recording of statistics; consideration of policies and practices and identification of those which discriminate against women; development of objectives and quantitative targets; and processes for monitoring and evaluating the outcomes in relation to the objectives and targets. Sections 13 to 19 set out the requirements of the Act in regard to the reports employers are to submit annually to the Affirmative Action Agency, the conditions for granting of extensions or waiving annual reporting requirements and the (minimal) penalties for failing to report.

The Act establishes an Affirmative Action Agency, the functions of which include the receipt and analysis of annual reports from employers; provision of assistance, advice and guidelines to employers about the development and implementation of their affirmative action programs; and undertaking research, educational and promotional programs to further the purposes of the Act.[65] However, reporting requirements are so limited that a mere token adherence to the requirements of the Act appears to be sufficient to gain the approval of the Agency. Employers are not required to establish that their Affirmative Action programs are actually achieving their aims, largely because the planning and reporting requirements of the Act do not specifically include implementing Affirmative Action plans and the annual reports are not specifically required to report on progress towards achieving the previous year’s plan. Nor are employers examined in relation to their record regarding discrimination; it is possible for an organisation to be simultaneously commended for its Affirmative Action plan by the Affirmative Action Agency while at the same time being engaged in legal action on discrimination matters.

The above criticisms aside, the AAA clearly does represent an attempt to legislate in accordance with the obligation to ensure equality of employment opportunity for women as enumerated in a number of international instruments. However, like the SDA, the AAA contains no reference to categories of women who are covered by other anti-discrimination legislation, such as the RDA and disability discrimination legislation. Therefore, there is no legal requirement for employers covered by the Act to take action to address issues affecting sub-categories of women who are doubly disadvantaged (eg ethnic and Indigenous women). Nor are rural women, whose needs are addressed in art14(2) of the CEDAW, referred to in either the AAA or the SDA; this omission is of particular importance to Indigenous women, a large proportion of whom are rural.

A further major flaw with this Act is its limited application, to only larger private sector employers and to some other employers such as universities and trade unions, that is a minority of employers and a smaller minority of employees.[66]

An opportunity to redress some of these issues was provided by the recent regulatory review of the AAA. However, both the report of the review and the current government’s response indicate that little is likely to change in a positive direction. The emphasis in reporting provisions of the new Act, to be named the Equal Opportunity for Women in the Workplace Act will be on outcomes rather than processes,[67] and the role of the Affirmative Action Agency is recommended to become more educative;[68] however the government has rejected or only partially accepted recommendations that would support this new role.[69] Importantly, extension of the Act’s application is not recommended: on the question of increasing the Act’s coverage to groups such as disabled, ethnic and Indigenous people or to smaller organisations, the review recommended and the government agrees that the Act should not be broadened to cover other disadvantaged groups or medium and small business.[70] Interestingly in the context of this examination, there is only a single passing reference in the review report to the fact that there is a body of international agreements underpinning the AAA[71] and there is no attempt to examine how well the AAA addresses the obligations arising from the relevant instruments.

Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOCA)

This Act establishes the Human Rights and Equal Opportunity Commission, the main agency with responsibility for implementing and oversighting Australia’s performance in relation to its human rights obligations under international human rights instruments. Various of these instruments, including ILO 111, ICCPR, the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons and the Declaration on the Rights of Disabled Persons are included as schedules to the HREOCA. Additional instruments can be declared to be an international instrument for the purposes of the Act although this facility has not yet been used.

The duties of the Commission are laid out in Section 10A(1) and include its duty to perform its functions:

(a) with regard for:

(i) the indivisibility and universality of human rights; and
(ii) the principle that every person is free and equal in dignity and rights.

The grounds covered in the Act are: race, colour, sex, religion, political opinion, national extraction or social origin;[72] additional grounds included by regulation are: age, medical record, criminal record, impairment, marital status, mental, intellectual or psychiatric disability, nationality, physical disability, sexual preference, trade union activity or any of these which once existed but has ceased to exist or is imputed to exist.[73] Section 11(2) allows acts or enactments which have 'the purpose of securing adequate advancement of particular persons or groups of persons in order to enable them to enjoy or exercise human rights equally with other persons'; that is, special measures can be taken to redress past discrimination without a breach of HREOCA occurring.

The functions of the Commission are similar to those conferred by the SDA on the relevant Commission and include functions relating to equal employment opportunity. The Commission has power to examine witnesses, obtain information and make recommendations[74] pertaining to inquiries it carries out in response to a request from the Minister, a complaint or on its own initiative where it believes it is desirable to do so.[75] Thus the Commission is specifically enabled to look into matters pertaining to discrimination in employment and occupation, consistent with Australia’s obligations under ILO 111.

This is the broadest of the anti-discrimination Acts outlined here; however, like the RDA and the SDA it is limited in that it does not have the power to require proactive action to be taken by any party, Government or otherwise, to redress past discrimination. It is also 'hampered by the fact that the powers it confers are largely confined to conciliation and educational functions without the power to make any determinations'.[76] If its power to investigate matters is curtailed, as has been suggested in the current review of the Act,[77] its already limited effectiveness as a tool for ensuring the human rights of Australians will be even further reduced.

Public Service Act 1922 (PSA)

The PSA contains provisions relating to employment in the Commonwealth Public Service (CPS). Section 22B, included in the Act since 1984, relates to the establishment and implementation of Equal Employment Opportunity Programs in Departments of the CPS and other Commonwealth bodies prescribed by regulation. In most respects this Act is similar in its provisions in relation to EEO to the AAA and the EEOA (see below).

Sub-section 5 of the Act specifies the responsibility of Departmental Secretaries to implement the EEO Program:

The Secretary of a Department shall take any action necessary to give effect to the equal employment opportunity program for the Department and any person who exercises powers in relation to employment matters in the Department shall have regard to the program in exercising those powers.

The differences between this Act and the AAA lie mainly in three areas. Firstly, the PSA refers, in addition to women, to 'designated groups' which includes people with disabilities, Aboriginal and Torres Strait Islander people and people from non-English speaking backgrounds. The latter group is somewhat narrowly defined, including certain overseas-born people and their children but not people who may be victims of racial discrimination despite being descendants of people who arrived in Australia more than two generations ago. Thus, even where a more extensive range of groups subject to discrimination are covered by legislation, this coverage falls far short of that of anti-discrimination legislation and relevant human rights instruments.

Secondly, consultation in relation to development and review of EEO Programs must occur first with unions and then with 'such other persons as the Secretary considers appropriate'.[78] That is, there is no provision requiring the members of target groups to be consulted in the development or review of EEO Programs.

Thirdly, there is no compulsory reporting requirement. Copies of the initial EEO Program and a written statement of any review conducted 'from time to time'[79] must be provided to the Public Service Board (PSB). Rather than a system of regular reports as required by the other relevant Acts, Secretaries of Departments are only required to report in writing in regard to the development, implementation or review of EEO Programs on request of the PSB.[80] There is no indication of what may trigger the Board to request such a report. The Board reports to the Prime Minister.[81]

Although the above indicates that the PSA is not designed to strongly uphold the human rights of minority group employees, it appears to be significantly better in this regard than the amended Public Service Bill[82] proposed by the current Government. If this Bill passes through Parliament in its current form, Section 22B will be replaced by Clause 18 - 'Promotion of employment equity': 'An Agency Head must establish a workplace diversity program to assist in giving effect to the APS Values'.

The value statements of particular relevance and referred to in the Explanatory Memorandum to the Bill[83] are Clause 10(c): 'the APS provides a workplace that is free from discrimination and recognises the diverse backgrounds of APS employees'; and Clause 10(j), as indicated by paragraph 3.5.17 of the Explanatory Memorandum: 'The APS will provide a fair, flexible, safe and rewarding workplace (Bill para 10(j)). Each Agency Head will be required to implement a Workplace Diversity Program (see Bill cl.18) to promote fairness in employment and a family friendly environment'.

Other requirements of the new Bill include the Public Service Commissioner’s responsibility to issue Commissioner’s Directions which will set out the substantive requirements for a workplace diversity program; and require all Agency Heads to report annually to the Public Service Commissioner on their workplace diversity programs.

Until this Bill becomes law, and the substance of the Commissioner’s Directions referred to above are known, it is impossible to say what effect these changes will have on employment equity in the Australian Public Service. However, given the substantial downsizing which is occurring, and the ideological commitment of the current Government to deregulation of employment, there is no reason to believe that there will be improvement in public sector employment opportunities for women, Indigenous Australians and members of other minorities.

Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) (EEOA)

This Act complements the AAA and the PSA, and covers specified public sector employers to which neither of these Acts applies. Its provisions parallel most closely those of the PSA, in particular in that it requires Commonwealth authorities to develop, implement and review Equal Employment Opportunity programs to cover women, Aboriginal and Torres Strait Islander people, people with disabilities and people from non-English speaking backgrounds. It prohibits discrimination that is unlawful under the RDA or the SDA; that is, discrimination on the basis of race as defined in the RDA and on the basis of sex. It establishes an eight-step planning process parallel to that included in the AAA,[84] with the Public Service Board as the agency responsible for receiving and assessing annual reports from employers covered by the Act and for producing guidelines on program development, implementation and review.[85]

The criticisms of the AAA and of the PSA as it currently exists, as outlined above, are equally relevant here.

Workplace Relations Act 1996 (Cth) (WRA)

The WRA is the major piece of federal legislation relating to the employment relationship and replaces the Industrial Relations Act 1988 (Cth), referred to in the SDA. The principle objects of the Act are laid out in Section 3, which states, in part:

The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

(a) encouraging the pursuit of high employment, improved living standards, low inflation and international competitiveness through higher productivity and a flexible and fair labour market; and ...

(d) providing the means:

(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and
(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and .....

(i) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and

(j) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and

(k) assisting in giving effect to Australia's international obligations in relation to labour standards.[86]

The particular international obligations referred to above are those derived from the Equal Remuneration Convention, the Termination of Employment Convention, the CEDAW, ILO 111, ILO 156 and arts 3 and 7 of the ICESCR. The Termination of Employment Convention is set out in Schedule 10 of the Act, and ILO 156 is included as Schedule 12;[87] the other instruments referred to are not appended to the Act, although all were schedules to the Industrial Relations Act 1988 (Cth).

Despite some positive aspects of the WRA in relation to employment rights, such as protection of workers from termination on grounds of race, sex or family responsibilities[88] in accordance with objective ‘j’ cited above, its overall thrust cannot be said to be protective of the relevant rights. An analysis of the content of the WRA shows that it:

• severely limits the power of employees and their representatives, the unions;[89]
• changes the role of awards from compendia of employees’ entitlements to a minimum set of standards;[90]
• limits rights to take industrial action to particular times and on particular issues, significantly affecting the ability of employees and their unions at local level to take action outside bargaining periods;[91]
• refers to the Act’s purpose to 'assist' in the implementation of certain international instruments[92] rather than being the primary vehicle for implementation;
• changes fundamentally the 'no disadvantage test' so that it refers to the overall effect of an individual agreement rather than referring to prevention of discrimination;[93] and
• omits to include reference to anti-discrimination law in Sections of the Act which refer to employees’ rights under this or other legislation.[94]

In addition, in areas which pertain to particular human rights as included in various international instruments, the WRA so distorts the intention of these instruments through its emphasis on the rights of employers away from the rights of employees[95] as to severely damage those rights; for example, the freedom of association provisions in the WRA. On the face of it, these extensive provisions appear to protect the rights of workers to organise. However, the ILO has found that the Act is in serious breach of ILO Convention 98: Right to Organise and Collective Bargaining 1949.[96] In addition, as MacDermott points out, the WRA also protects the negative right of individuals to not join a union although this is not the intention of the above convention or ILO Convention 87 Freedom of Association and Protection of the Right to Organise 1949, both of which are aimed in the main at protecting collective rights.[97] The danger with this individualistic approach is that it benefits non-unionists, individual dissidents within unions and some employers, while its 'main casualties are trade-union strength, effectiveness and efficiency, and the stability of the bargaining relationship'.[98]

There are also issues in relation to employment security, hours of work and remuneration which call into question the ability of this Act to protect the internationally recognised rights of workers to work,[99] to reasonable hours of work[100] and to decent wages.[101]

Employment Rights and Relevant Legislation

A brief examination of the Acts described above indicates significant gaps in their content when compared to the rights included in the various international human rights instruments to which Australia is signatory. Reference is nowhere made to the promotion of social progress as an aim of any of the above Acts although economic prosperity is an object of the WRA. These Acts are not primarily for the purpose of promoting material well-being and economic security, although it could be argued that this is an underlying purpose of industrial relations law as it has historically developed in this country. However, the WRA with its emphasis on economic prosperity rather than economic security seems to be moving away from this purpose in relation to employees; increased emphasis on the rights of employers to succeed economically is being promoted at the potential expense of employees in terms of pay and conditions.

The right to work and many of the rights at work derived from the international instruments examined in this paper and enumerated above are not specifically guaranteed by the legislation, with some exceptions:

• Freedom from discrimination is a primary purpose of the RDA, the SDA and the HREOCA but because the main purpose of these acts is to provide means of redress after discrimination has occurred, their value in actually protecting workers from discrimination is questionable.
• Rights to healthy and safe working conditions are covered by State laws, except for Commonwealth employees, and are referred to in the WRA.[102] However, specific issues pertaining to women’s health and safety are not taken up in any consistent way, and consideration of or action to address the health and safety issues which particularly impact on Indigenous workers and workers from non-English speaking backgrounds are omitted from any of the federal legislation examined here.
• Women’s right to equality of opportunity for employment and promotion is included in the AAA, which applies only to private sector employers with 100 or more employees and to limited other employers. These rights are extended by the PSA to employees of the Australian Public Service and by the EEOA to employees of specified Commonwealth authorities; in both the latter cases the law extends to employees who are members of other groups as well as women.

However, these positive inclusions in Commonwealth law are more than outweighed by gaps and omissions, compounded by the apparent lack of commitment to human rights by the current Federal Government. It is the clear intention of the government to amend the PSA to significantly water down the equal employment opportunity provisions applying to federal public servants; similar watering down appears to be result of the review of the AAA and may be the outcome of a review of the HREOCA. In addition, none of the three Acts directly pertaining to employment, the AAA, the PSA and the EEOA, are effectively enforceable, reducing their power to significantly affect the employment opportunities of women and disadvantaged groups.

As noted in the discussion of the AAA, this Act does not include, and its proposed replacement will not include, provisions which specifically refer to the rights of, or to issues pertaining to, women of Indigenous or ethnic backgrounds or rural women. There is, therefore, no direct encouragement given in the legislation to employers to direct programs to these groups. It is doubtful whether programs directed to the interests of the undifferentiated group 'women' will have significant positive impact on members of the above groups.

It has traditionally been the place of the industrial relations system to protect workers’ rights to just and favourable conditions of work and remuneration. The pay rates, working hours, leave entitlements and many other of the conditions enjoyed by today’s workers have been fought for and won by unions representing workers in cases before the relevant industrial relations authorities. Changes to the industrial relations system ushered in by the WRA pave the way not only for erosion of pay and conditions but also for reduction in the power of unions to defend those rights won over the past century. It would not be surprising if the WRA should usher in a decline in the standard of living of workers, possibly bringing with it a downwards estimation of what it means to have a 'decent living'. Only time will tell whether the potential trend to an erosion of wages and conditions of employment, through the reduction in impact of awards on pay and conditions, will become manifest.

Although the relevant legislation is not examined here, changes in the social security system, in particular the 'work for the dole' scheme, and changes to the role of the Commonwealth Department responsible for education and training affecting industrial and vocational guidance and training systems, are likely to undermine rather than protect rights to freedom of choice of occupation and access to vocational guidance and training.

A national body to promote and direct observance of human rights is in existence; the Human Rights and Equal Opportunity Commission performs this role to the extent that such a role is legislated for in Australia. However, recent cuts to funding severely curtail the possibility of the Commission effectively performing the role to what might be supposed was the extent intended by the drafters of the relevant human rights instruments[103] and reconfirmed by the Vienna Declaration of 1993.[104] In addition, recent restructuring of HREOC including reducing the five specialist Commissioners to three more generalist ones is causing significant concern in some quarters; further amendment to the HREOCA is on the cards and may even further weaken this Act and its role in protecting Australians’ human rights.

The RDA, SDA and HREOCA allow for 'special measures' to be taken without a breach of anti-discrimination law occurring, but they are not designed to promote the taking of such measures to redress past discrimination. These Acts establish complaints-based processes for dealing with breaches of human rights. Only the AAA and EEOA establish processes which require specified employers to take action to address discrimination or the results of past discrimination. Because of these legal arrangements, responsibility is not placed directly on employers to ensure that their policies and practices are non-discriminatory except in relation to women if they employ more than 100 people, or against the four designated groups if they are covered by the PSA or the EEOA. This is a small minority of employers, covering a minority of Australia’s employees.

Changes to the industrial relations system reduce the number of matters which can be included in awards to twenty, a list which does not include EEO programs and provisions relating to workplace harassment; nor does it include workplace consultation.[105] Therefore, other means whereby employers may be forced to consider issues affecting under-represented workers such as Indigenous people, through the operation of awards or through consultation with disadvantaged groups of employees, have been removed. Although such provisions could be included in local enterprise or certified agreements, there is a reduced chance of this occurring due to the reduced role of unions in these processes, and the minimal influence women and minority groups are likely to have on individual or workplace agreements at even a local level.

The conclusion which must be drawn from the above investigation is that the human rights of employees in Australia are inadequately guaranteed through the affirmative action, anti-discrimination and industrial relations legislation which exists at federal level. It is also clear that the rights which have been enacted in legislation in the past, however inadequately, are now being eroded. Given that the implementation of human rights instruments in Australia depends on the enactment of these rights in domestic legislation, this is not a picture which supports a view of Australia as a champion of human rights internationally. Exemplary legislative enactment of rights or at least consistent moves in that direction, would need to be apparent before such a claim could be supported.

References

ABC Radio National 'Doing Human Rights in Asia' (1997) Background Briefing August 24 http://www.abc.net.au/rn

Affirmative Action ( Equal Employment Opportunity for Women) Act 1986 (Cth)

Australian Bureau of Statistics Catalogue 6248.0: Wage and Salary Earners March Quarter 1997. (1997) ABS, Canberra.

Bailey Peter Human Rights: Australia in an International Context. (1990) Butterworths, Sydney.

Bevan, Deanne et al Unfinished Business: Equity for women in the workplace (1998) Department of Workplace Relations and Small Business, Canberra

CCH Australian and New Zealand Equal Opportunity Law and Practice Vols 1 and 2 (at 103) (1997) CCH Australia Limited, Sydney.

CCH Equal Opportunity Update Newsletter No 102 30 March 1999.

Commonwealth Public Service Act 1922 (Cth)

Convention Concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities (entered into force 11 August 1983) http://www.ilo.org

Convention on the Elimination of All Forms of Discrimination Against Women (entered into force 3 September 1981) http://www.austlii.edu.au/ahric/

Convention on the Elimination of All Forms of Racial Discrimination (entered into force 4 January 1969) http://www.austlii.edu.au/ahric/

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Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth)

[First] Optional Protocol to the International Covenant on Civil and Political Rights (entered into force 23 March 1976) http://www.austlii.edu.au/ahric/

Funder Anna 'Treaty Making Procedures in Australia'. (1994) 5 Public Law Review 288.

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Hunter Boyd The Potential Impact of the Workplace Relations and other Legislation Amendment Act 1996 on Indigenous Employees. (1997) (Discussion Paper No 130) Centre for Aboriginal Economic Policy Research, Canberra

International Covenant on Civil and Political Rights (entered into force 23 March 1976) http://www.austlii.edu.au/ahric/

International Covenant on Economic, Social and Cultural Rights (entered into force 3 January 1976) http://www.austlii.edu.au/ahric/

International Labour Organisation Convention 111 - Discrimination (Employment and Occupation) (entered into force 15 June 1960) http://www.ilo.org

Lofgren N 'Complaint Procedures under art14 of the International Convention on the Elimination of All Forms of Racial Discrimination'. [1994] AboriginalLawB 14; (1994) 3(67) Aboriginal Law Bulletin 11

MacDermott T 'Labour Law and Human Rights' in Kinley D (ed) Human Rights in Australian Law (1998) Federation Press, Sydney 194

McGlade H 'Reviewing Racism: HREOC and the Racial Discrimination Act 1975 (Cth)' [1997] IndigLawB 72; (1997) 4(4) Indigenous Law Bulletin 12

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Riordan C ‘Racial Discrimination Act 1975: A Review by the Race Discrimination Commissioner’ [1996] AboriginalLawB 76; (1996) 3(85) Aboriginal Law Bulletin 33

Roberts Susan 'Minister Of State For Immigration And Ethnic Affairs V Ah Hin Teoh: The High Court Decision And The Government's Reaction To It' [1995] AUJlHRights 1; (1996) 2 AJHR 1 http://www.austlii.edu.au/ahric/ajhr/ajhr2110roberts

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Sex Discrimination Act 1984 (Cth)

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Whitehouse A ‘Aboriginal Employment and Industrial Relations in the 90s’ [1994] AboriginalLawB 3; (1994) 3(66) Aboriginal Law Bulletin 6

Workplace Relations Act 1996 (Cth)

[*] Associate Lecturer, Business Faculty, University of the Sunshine Coast.

[1] It is interesting to note that, according to the Indonesian Ambassador to Australia, this Covenant is generally less stressed in Western societies, including Australia, than the International Covenant on Civil and Political Rights, while the more emphasis is placed on the ICESCR in developing and Asian nations. ABC Radio National 'Doing Human Rights in Asia' (1997) Background Briefing August 24, transcript 3.

[2] Peter Bailey, Human Rights: Australia in an International Context (1990) 1.

[3] It should be noted that this survey is confined to an examination of federal law, although state laws also contain provisions relevant to employment rights. A full examination of all relevant laws is beyond the scope of a single paper. See also notes 13 and 37 below.

[4] Funder A, ‘Treaty Making Procedures in Australia’ (1994) 5 Public Law Review 288; emphasis added.

[5] [First] Optional Protocol to the International Covenant on Civil and Political Rights article 2. The case taken by Nicholas Toonen on behalf of Tasmanian homosexuals to the Human Rights Committee is a case in point.

[6] Roberts S, ‘Minister Of State For Immigration And Ethnic Affairs v Ah Hin Teoh: The High Court Decision And The Government’s Reaction To It’ (1996) 2 Australian Journal of Human Rights 11.

[7] Ibid 4.

[8] Ibid.

[9] Minister for Foreign Affairs and Attorney-General and Minister for Justice, Commonwealth of Australia The Effect Of Treaties In Administrative Decision-Making Joint Statement (25 February 1997).

[10] Universal Declaration of Human Rights (entered into force 10 December 1948) (UDHR) Preamble.

[11] Ibid, Art 55.

[12] An obvious omission from this paper is an examination of instruments and legislation pertaining to people with disabilities. The relevant instruments and the Disability Discrimination Act 1992 (Cth) are not included due to the complexity of the issues involved and the lack of expertise of the author in the full range of those issues. To do proper justice to these issues would require a paper on these matters alone.

[13] Quoted in Department of Foreign Affairs and Trade Human Rights Manual (1993) 18.

[14] Ibid.

[15] Charter of the United Nations (entered into force 26 June 1945) (UN Charter), Article2.2; ICCPR, Article2.2; ICESCR, Article2.1.

[16] Roberts, above n 6, 3.

[17] Senate Legal and Constitutional References Committee, Commonwealth of Australia Commonwealth Power to Make and Implement Treaties - Report (1996) Chapter 10 - “Practices in other Federations” para 10.3.

[18] In fact, this appears to be one the purposes of Australia’s ratification of a number of treaties, along with a generally accepted view that it is in Australia’s national interest to do so. See Commonwealth Power to Make and Implement Treaties - Report (1996) above n 17, Chapter 11 - “Reviewing the Value of Current Treaties” para 11.5-11.9 and 11.13.

[19] UN Charter Preamble and art 55; ILO111 arts 2 and 3; ICESCR Article1.

[20] UN Charter Preamble and art 55(a); ILO 111 Preamble; ILO 156 Preamble.

[21] UDHR art 23.1; ICESCR art6(1); ICERD art5(e); CEDAW art11(1)(a), ILO 156 art3(1).

[22] UDHR arts 2 and 7; ICCPR arts 2(2) and 6; ICESCR art2(2); ILO111 arts 1(1), 2 and 5(2); ICERD Preamble and art2(1); CEDAW art11(2)(a) and (c) and art16; ILO 156 Preamble and arts 3(1) and 8.

[23] UDHR art23(1); ICESCR art7; ICERD art5(e); ILO 156 art4(b).

[24] UDHR art23(2), 23(3); ICESCR art7(1)(1); ICERD art5(e)(i); CEDAW art11(1)(d).

[25] UDHR art23(4); ICCPR art22(1), 22(3); ICESCR art8(1)(1), 8(3); ICERD art5(e)(ii).

[26] UDHR art23(1); ICCPR art8(2), 8(3); ICESCR art6(1); CEDAW arts 11(1)(c) and 16(1)(g); ILO 111 art1; ILO 156 art4(a).

[27] ICESCR art6(2); ILO 111 art3(e); CEDAW art11(1)(c); ILO 156 art7; ILO 169 art22. The latter reference is included although Australia has not yet ratified the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries 1989 (ILO Convention 169).

[28]UDHR art23(2), ICESCR art7(1)(2).

[29] ICESCR arts 7(2) and 12; CEDAW art11(1)(f) and 11(2)(d).

[30] ICESCR art7(3); CEDAW art11(1)(b) and (c); ILO 111 art2; ILO 156 Preamble.

[31] UDHR art24; ICESCR art7(4), CEDAW art1(1)(e).

[32] ICESCR art10(2); CEDAW art11(2)(b).

[33] ILO 111 art3(d) and (e).

[34] ICESCR art10(2); ILO 111 arts 2, 3(c) and 5(2); ICERD arts 1(4) and 2(2); CEDAW art16(1)(g); ILO 156 Preamble and art4(b).

[35] CEDAW Preamble and art14(1) and 14(2).

[36] For an examination of these rights in relation to Indigenous Australians, see Norris R, ‘Human Rights and Wrongs: Indigenous employment past, present and future” (1998) 17(2) Social Alternatives 28.

[37] It is possible that other pieces of legislation are pertinent to employment and the protection of the human rights relating to employment identified above. It is certainly true that State legislation covers areas such as discrimination and workplace health and safety. However, it is not possible in the confines of a single paper to canvass all the possible issues.

[38] RDA 1975 (Cth), s 9(1).

[39] Ibid s 9(2).

[40] Ibid s 15(1).

[41] Ibid s 15(2) and (3).

[42] Ibid s 18A.

[43] Ibid ss 19-24.

[44] A search through CCH, Australian and New Zealand Equal Opportunity Law and Practice, Vol 2 (at 103) reports of racial discrimination cases relating to employment found few where the complainant was successful. See for example Michael Dealey v Australian Leisure and Hospitality Group Limited No. 97/91; and Jesus Benedicto Soares v Bayer Australia Limited No. H95/83. Even where a finding for the complainant has been made, the damages accorded are likely to be minimal. See for example Joseph Bachleda v Associated Steamships Pty Ltd T/as Asp Ship Management and Frank Piesik No. 96/144. An exception to this is Alex Rugema v J. Gadsten Pty. Ltd. trading as Southcorp Packaging and Stephan Derkes No. R97/1, although the amount of $55,000 damages for the extent of detriment suffered by the complainant could still be considered minimal.

[45] Riordan Catherine ‘Racial Discrimination Act 1975: A Review by the Race Discrimination Commissioner’ [1996] AboriginalLawB 76; (1996) 3(85) Aboriginal Law Bulletin, 33.

[46] Race Discrimination Commissioner Racial Discrimination Act 1975: A Review. (1995) Australian Government Publishing Service, Canberra, 279. See also comments on this matter by McGlade Hannah 'Reviewing Racism: HREOC and the Racial Discrimination Act 1975 (Cth)' (1997) 4(4) Indigenous Law Bulletin, 14.

[47] Riordan, above n 45, 33.

[48] Lofgren, Neil 'Complaint Procedures under art14 of the International Convention on the Elimination of All Forms of Racial Discrimination' [1994] AboriginalLawB 14; (1994) 3(67) Aboriginal Law Bulletin, 11.

[49] Riordan, above n 45, 34.

[50] SDA 1984 (Cth) s 5.

[51] Ibid s 6.

[52] Ibid s 7.

[53] Ibid s 7A.

[54] Ibid s 4A(1).

[55] Ibid s 4A(2).

[56] Ibid s 14(3A). Note that this limits discrimination on this ground to dismissal only; unlike the other characteristics specified in the Act, other forms of detriment are not covered in relation to family responsibilities. The implications of this in relation to Indigenous and ethnic employees are further explored below.

[57] Ibid ss 15-20.

[58] Ibid s 48.

[59] Ibid ss 50 and 50A.

[60] For comment on this lack of cross-referencing between the RDA and SDA, see McGlade, above n 46, 14.

[61] CCH, Australian and New Zealand Equal Opportunity Law and Practice Vol 1 (at 103) p6,222.

[62] AAA 1986 (Cth) s 3.

[63] SDA 1986 (Cth) ss 5, 6 and 7; note that s 7A on family responsibilities is not included.

[64] AAA 1986 (Cth) s 3.

[65] AAA 1986 (Cth) s 10.

[66] In February 1997, 3,207,100 of Australia’s 5,307,300 wage and salary earners worked in companies employing fewer than 100 people. Australian Bureau of Statistics Catalogue 6248.0: Table 20, 35.

[67] Bevan, Deanne et al Unfinished Business: Equity for women in the workplace (1998) Department of Workplace Relations and Small Business, Canberra, Recommendations 6-10; Promoting Equal Employment Opportunity for Women: Coalition Government response to the regulatory review of the Affirmative Action (Equal Employment for Women) Act 1986 (1998) Department of Workplace Relations and Small Business, Canberra, 5.

[68] Bevan, above n 67 Recommendation 5.

[69] Bevan, above n 67, Recommendations 12-15; Government Response, above n 67, 6.

[70] Bevan, above n 67, Recommendations 2 and 3; Government Response, above n 67, 4.

[71] Bevan, above n67, 99.

[72] Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOCA) s 3(1).

^[73] Human Rights and Equal Opportunity Commission Regulations 1989, r 4.

[74] HREOCA, ss 21, 22 and 29.

[75] Ibid s 20(1) A review of the Act currently in progress is looking at reducing these powers.

[76] MacDermott, Theresa 'Labour Law and Human Rights' in Kinley, D (ed) Human Rights in Australian Law (1998) 196.

[77] CCH Equal Opportunity Update Newsletter No 102 30 March 1999, 3.

[78] Public Service Act 1922 (Cth) s 22B, sub-ss 3(a) and 4(a).

[79] Ibid s 22B (4)(a).

[80] Ibid s 22B (6).

[81] Ibid s 22B (11).

[82] Public Service Bill 1997 (Cth).

[83] Public Service Bill 1997 - Explanatory Memorandum.

[84] But note that this process will no longer be required if the recommendations of report of the regulatory review of the AAA are enacted in new legislation. See Bevan, , above n 67, 77 and 70.

[85] Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth) ss 3, 5-9, 13.

[86] Workplace Relations Act 1996 (Cth) s 3, emphasis added.

[87] Ibid s 4.

[88] Ibid s 170CK (2) (f).

[89] See, for example WRA s 3(b), (c) and (d)(i), s 140.

[90] See, for example WRA ss 89A and 113A.

[91] See, for example, WRA ss 170ML, 170MM and 170MR.

[92] See, for example, WRA s 3(k), s 83BB(2)(c), s 170CK.

[93] See WRA s 170XA.

[94] See, for example, WRA s 127A, s 170VO(2) and s 170VR(2).

[95] See, for example, WRA s 88A(c) and (d) where equal rights appear to be given to employers and employees but the differential power wielded by employers over employees is not balanced against the potential greater vulnerability of employees in the employment relationship. See also ss 94 and 298W and 298Y which in effect prohibit union preference clauses in awards and agreements and s 170MM which prohibits certain actions by employees and unions but makes no reference to similar restrictions on employers.

[96] CCH, Equal Opportunity Update, (at Report No 93, 8 May 1998), 2.

[97] MacDermott, above n 76, 206.

[98] Prondyznski cited in MacDermott, above n 76, 207.

[99] See WRA s 170VH which limits the operation of AWA’s to a maximum of three years; in the absence of any provision relating to reversion to an award or other agreement on pay and conditions, it seems this clause may have the effect of eliminating long-term security of employment for employees covered by AWA’s.

[100] See, for example, WRA s 89A(4).

[101] See, for example, WRA s 88B(2)(b), s 123, s 170ML(3)(b), s 170VT(2).

[102] WRA ss 170VO(2) and VR(2).

[103] CCH, above n43, 90,461.

[104] Articles 27 and 36.

[105] Hunter, Boyd The Potential Impact of the Workplace Relations and other Legislation Amendment Act 1996 on Indigenous Employees. (1997) (Discussion Paper No 130) Centre for Aboriginal Economic Policy Research, Canberra, 7.