While Work Choices will not have any direct effect on the operation of state and federal anti-discrimination laws, observers have suggested the new industrial relations reforms may indirectly lead to more discrimination-related claims.
A number of observers are predicting that with the introduction of the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices) and, in particular, changes to the unfair dismissal laws, there will be a proliferation of claims in the anti-discrimination jurisdiction.
Work Choices introduces a new scheme for unfair dismissal claims under the Workplace Relations Act 1996. Such claims will now be limited to employers with 100 or more employees. Employees must have at least six months' service to access the unfair dismissal laws.
Certainly, the possibility of a rise in discrimination claims has been suggested by the Human Rights and Equal Opportunity Commission. In the Commission's submission to the Senate Employment, Workplace Relations and Education Legislation Committee's Inquiry into the Workplace Relations Amendment (Work Choices) Bill 2005, the Commission aired its concern that:
"in the absence of alternative remedies of unfair dismissal, many employees are likely to pursue complaints with State and Federal anti-discrimination agencies, placing significant pressure on existing complaints mechanisms both at a State and Federal level".
It would seem that employment-related complaints feature in the anti-discrimination jurisdiction. In the Commission's annual report of 2005, it notes employment was the predominant area of complaint across all federal anti-discrimination legislation.
Employment-related complaints under the Racial Discrimination Act 1975 made up 43% of complaints, 85% under the Sex Discrimination Act 1984, 49% under the Disability Discrimination Act 1992 and 49% under the Age Discrimination Act 2004.
Employment-related complaints made under the Human Rights and Equal Opportunity Commission Act 1986 have also been on the increase with claims of discrimination on the grounds of trade union activity and criminal record dominating.
While it is (at least) conceivable that an individual could use the anti-discrimination jurisdiction to challenge a termination decision when it might not be possible to do so under Work Choices, any such claim would have to be properly characterised and assessed as a matter falling within that jurisdiction. The anti-discrimination jurisdiction is a complex area of law with a wealth of authorities which have been built up over time by various state discrimination tribunals and courts.
For example, is there relevantly a prescribed attribute on which the termination decision relates? Have the particular requirements for a direct or indirect discrimination claim been met?
In addition, notwithstanding Work Choices, remedies for unlawful termination under the Workplace Relations Act remain. Unlawful termination (which is not the same as unfair dismissal) occurs in relation to a number of prohibited grounds that include temporary absence on account of illness, trade union membership, non-trade union membership, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion and national extraction or social origin.
At this point, it is not clear that avenues such as unlawful termination claims would necessarily fall to the wayside in favour of a wave of claims made strictly under various anti-discrimination legislation. This is particularly so given that access to the Workplace Relations Act's unlawful termination jurisdiction has not been changed by Work Choices.
What lies ahead
The precise impact of Work Choices, particularly on the anti-discrimination jurisdiction, will not be immediately known and any developments will need to be closely reviewed over the coming period. This is particularly so, given the pending constitutional challenge in the High Court.
Nonetheless, proactive and prudent employers will remain vigilant when it comes to monitoring, preventing and addressing discrimination issues in their workplaces.
Thanks to Millen Lo and Adrian Kuti for their help in writing this article.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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