The Commonwealth Government has implemented two significant developments in discrimination law by releasing an exposure draft of harmonised anti-discrimination legislation and by introducing new gender reporting requirements.

New gender reporting requirements

The Senate has passed the Government’s workplace gender equality legislation, the Equal Opportunity for Women in the Workplace Amendment Bill 2001 (Cth). The Bill establishes a new reporting framework for employers and changes the name of the Equal Opportunity for Women in the Workplace Act 1999 (Cth) (“EOWW Act”) to the Workplace Gender Equality Act 2012 (“WGE Act”).

The new law aims to “modernise” the EOWW Act to change the focus of gender equality legislation from equal opportunity in the workplace for women only, to gender equality in the workplace for men and women through new reporting requirements for employers.

Reporting framework

We provided a summary of the changes proposed by the Bill in a previous alert. The key changes to reporting requirements to commence in May 2014 are summarised below:

  • Gender Equality Indicators: all relevant employers (ie non-public sector employers with 100 or more employees) must report annually on their compliance with a set of gender equality indicators (GEI). GEI’s are defined as:
    • gender composition of the workforce;
    • gender composition of governing bodies of relevant employers;
    • equal remuneration between men and women;
    • availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
    • consultation with employees on issues concerning gender equality in the workplace; and
    • any other matters specified by the Minister.
  • Minimum standards: the report must meet minimum standards, set by the Minister each year. The standards will be evidence based, relating to quantitative outcomes or evidence of actions taken that are aimed at improving quantitative outcomes.
  • Chief Executive sign-off: the report must be signed off by the Chief Executive Officer of the employer.
  • Notification and access: after the report is lodged, employers must inform their employees, shareholders and unions that the report has been lodged and provide access to the report to employees and shareholders. Employers must also allow employees and unions an opportunity to provide comments on the report to the Agency and/or employer.

The transition to the new reporting obligations will be phased in over the next two years:

  • For the 2012 to 2013 reporting period, relevant employers are required submit a report comprising a workplace profile in the same format as under the EOWW Act. Employers must also comply with the notification and access requirements.
  • For the 2013 to 2014 reporting period, the requirements of the WGE Act become fully operational. Relevant employers must report annually on their compliance with the GEIs in a report signed off by their Chief Executive Officer and comply with the notification and access requirements.
  • For the 2014 to 2015 reporting period, the first minimum standards will apply. From the 2014 to 2015 reporting period, if a relevant employer submits a report that does not meet a minimum standard, and does not improve against it by the end of two further reporting periods, it may be non-compliant.

Implications for employers

Consequences for non-compliance with the reporting obligations under the WGE Act remain largely the same as under the old EOWW Act. That is, the Workplace Gender Equality Agency will name non-compliant employers through its annual report and other means. Additionally, non-compliant employers may also be ineligible to compete for Commonwealth procurement contracts, Commonwealth grants or other financial assistance.

Employers should start to consider how they are tracking against the gender quality indicators and identify areas where improvement is required in preparation for the new reporting obligations commencing May 2014. Employers should also start to establish procedures for consulting with employees, shareholders and unions from May 2013.

Harmonised discrimination laws

The Commonwealth Government has also released an exposure draft of the Human Rights and Anti-Discrimination Bill 2012 which proposes to consolidate the five pieces of different Commonwealth discrimination legislation into a single Act.

The Bill proposes to replace the Sex Discrimination Act 1984 (Cth), Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth), Age Discrimination Act 2004 (Cth) and the Australian Human Rights Commission Act 1986 (Cth) with one single piece of legislation.

The Government has referred the Bill to the Senate Legal & Constitutional Affairs Committee to conduct a period of public consultation. Details of the consultation process and other information relating to the proposed legislation are available here. Submissions on the exposure draft are required to be made in writing by 21 December 2012.

The Bill does not represent a significant policy shift from the existing protections under Commonwealth discrimination law – many of the concepts will be familiar to employers. The Government has emphasised that the harmonisation process is designed to simplify existing laws rather than create new laws or policy standards. However, there are a number of differences which will need to be considered and addressed by employers if the Bill becomes law.

The key features of the Bill are summarised below:

New Protected Attributes

The Bill makes it unlawful to discriminate against a person on a range of specified protected attributes as is currently the case under Commonwealth and State legislation. These include attributes that are currently covered by Commonwealth legislation but also introduce additional protected attributes namely:

  • sexual orientation and gender identity;
  • industrial history – ranging from a membership of an industrial organisation or participating in a lawful activity organised by an industrial organisation; and
  • medical history - including sensitive information not related to a disability.

Significantly, the Bill does not make a person’s criminal record a protected attribute even though it is currently specified in Regulations made under the Australian Human Rights Commission Act 1986 (Cth).

Direct and Indirect Discrimination

The Bill recognises discrimination can occur in two ways. Discrimination may arise where:

  • a person treats another unfavourably because of a particular attribute (commonly known as direct discrimination);
  • people with a particular attribute are disadvantaged by a policy, requirement or condition which appears neutral on its face (commonly known as indirect discrimination).

The Bill does not describe the above as “direct” and “indirect” discrimination. This has been done deliberately to avoid the perception that the two forms of discrimination are mutually exclusive. Notwithstanding the change in terminology the concepts remain largely the same.

Defence of Justifiable Conduct

Significantly the Bill introduces an exception for “justifiable conduct” in relation to all protected attributes in the Bill. Under the Bill, conduct will be justifiable and not unlawful if the conduct is:

  • engaged in good faith for the purpose of achieving a particular aim;
  • the aim is a legitimate;
  • a reasonable person in the circumstances would have considered that engaging in the conduct would achieve that aim; and
  • the conduct is a proportionate means of achieving the aim.

In relation to discrimination on the ground of disability, conduct is not justifiable if there is a reasonable adjustment that could have made which would have no, or a lessor, discriminatory effect.

Exemption for Inherent Requirements of Work

The Bill retains the inherent requirements defence which is currently a feature of both Federal and State discrimination laws. The Bill provides that it is not unlawful to discriminate against a person in connection with work if the person is:

  • unable to carry out the inherent requirements of the particular work because they have a protected attribute; and
  • the discrimination is necessary because the other person is unable to carry out those inherent requirements.

The requirement to show the discrimination was “necessary” is a new concept but does not seem to add much to the existing defence.

In relation to discrimination on the ground of disability, the inherent requirements defence does not apply if:

  • there is a reasonable adjustment the discriminator could have made; and
  • if the adjustment had been made the complainant would have been able to carry out the inherent requirements of the particular work.

An adjustment is “reasonable” if it could be made without an “unjustifiable hardship”. The Bill specifies a number of factors which should be considered when determining whether an adjustment would cause an “unjustifiable hardship” including:

  • the nature of any benefit or detriment likely to accrue to or be suffered by the person concerned;
  • the effect of any disability of any person concerned;
  • the financial circumstances of the alleged discriminator and the costs associated with making the adjustment;
  • the availability of financial or other assistance to support the adjustment being made;
  • any relevant guidelines or action plans made under legislation.

Significantly, the requirement to consider whether a reasonable adjustment is possible only applies to discrimination on the grounds of disability. There is no requirement to consider whether a reasonable adjustment could have been made to enable a person to perform the inherent requirements of work in respect of other protected attributes such as family responsibilities or age.

Other Exemptions

The Bill also provides that other conduct will be exempt from unlawful discrimination:

  • conduct constituting a special measure to achieve equality will not constitute unlawful discrimination in respect of all of the prohibited attributes; and
  • conduct done in compliance with a Commonwealth Law, a court order or an industrial instrument (such as an award or workplace agreement) will not constitute unlawful discriminations.

The Bill also provides a process of seeking temporary exemptions from the Australian Human Rights Commission (“AHRC”) to permit conduct which would be otherwise unlawful.

Vicarious Liability

As is currently the case, the Bill prohibits sexual harassment, racial vilification and victimisation (among other things). The Bill largely retains the standard definition of sexual harassment.

The Bill also provides that a principal is liable for the unlawful conduct of a director, officer, employee or agent of the principal where the conduct occurs in connection with their duties as a director, officer or agent or connected with the person’s employment. The Act provides a defence for a principal who can show that they took reasonable precautions, and exercised due diligence to avoid the conduct.

While the reasonable precautions defence has previously applied in respect of sexual harassment, the requirement to show that the principal has exercised due diligence to avoid the conduct is a new requirement. This may require increased attention and focus by employers and their officers to make out the defence.

Compliance Measures

The Bill contemplates that compliance codes may be developed and approved by the AHRC. Compliance with an approved compliance code will provide a defence to allegations of unlawful conduct.

The explanatory materials released by the Government suggest this will enable greater certainty to be achieved in relation to compliance with the discrimination law. For example, the AHRC could develop a compliance code to provide certainty about what actions will not constitute discrimination or will not give rise to a claim of unlawful discrimination.

The Bill also provides for the enactment of disability standards. Conduct in accordance with the disability standard will not be unlawful discrimination.

Streamlining Complaints

The Bill includes a number of concepts designed to “streamline” the resolution of complaints:

  • the Bill introduces a reverse onus of proof. Under the Bill, once a complainant establishes evidence of a protected attribute and detrimental treatment, the onus will then shift to the respondent who must establish that their conduct was not for a discriminatory reason;
  • the general rule is that each party to a court dispute should bear their own costs, but the court has a discretion to award costs in the interests of justice;
  • the AHRC will have an enhanced ability to dismiss unmeritorious complaints at an early stage.

Interaction with State Laws

The Bill makes it clear that it is not intended to cover the field and override existing State anti-discrimination legislation. The intention is that the State legislation will operate concurrently with the Federal Legislation (except where a person has complied with a Compliance Code or Disability Standard). This is unfortunate as it means that employers will continue to be subject to multiple discrimination laws and different forums in which discrimination claims may be brought.