The issues in the Australian context are not dissimilar to those being faced by employers abroad, and their experience could give valuable clues to future developments here.
With the anti-discrimination laws firmly in place in the Australian legal landscape, and if predictions of a rise in discrimination claims flowing from the recent federal industrial reforms to the Workplace Relations Act 1996 ("Work Choices") prove to be accurate, more than ever, prudent employers will need to be familiar with this often dynamic jurisdiction.
In this regard, as the anti-discrimination framework (at home) often shares some similarities to counterpart anti-discrimination frameworks (abroad), offshore trends and developments may be predictive of possible future trends and developments in the area generally, or otherwise reaffirm that issues facing Australian employers may in fact be shared experiences.
Certainly in Australia, within the anti-discrimination jurisdiction the key areas of interest in recent times have included:
- disability discrimination issues when dealing with the management of injured workers, provision of rehabilitation and reasonable adjustments, medical retirement and addressing psychological or psychiatric impairments; >
- flexible workplace arrangements from the provision of part-time work, job share to working from home arrangements;
- age discrimination in the context of an ageing population (in 2004 Australia introduced federal age discrimination legislation, the Age Discrimination Act 2004);
- issues relating to equal pay for equal work, particularly with regard to gender disparity;
- use of the anti-discrimination laws to address the apparent rise in the incidents of workplace bullying;
- race and religious vilification;
- reputational issues for employers whom are faced with a discrimination or harassment complaint and the impact (if any) on corporate social responsibility and shareholder value.
However, are these issues unique to Australia?
It would seem that, on many fronts, the issues in the Australian context are not dissimilar to those being faced by employers abroad.
For example, both in the Australia and the UK there seems to have been an increasing awareness that with the ageing population come particular issues about how older workers are treated in the workplace. Following Australia, the United Kingdom has recently introduced specific age discrimination laws. Specifically, from 1 October 2006, the much anticipated Employment Equality (Age) Regulations will make it unlawful in the UK to discriminate on the grounds of age in employment (including in recruitment, promotion, employee benefits and redundancy schemes) and vocational training. Notably, the Regulations introduce a national default retirement age of 65, making compulsory retirement below 65 unlawful unless objectively justified, and gives all employees the right to request to work beyond 65 or any other retirement age set by the employer. Employers must also give advance notification to employees who are due to retire.
In Australia, the High Court's decision in State of New South Wales v Amery highlighted some of the issues in pursuing equal pay for equal work-type claims within the anti-discrimination framework. Interestingly, from April 2007, the UK will see the commencement of the new Gender Equality Duty ("GED") which will require public authorities to take particular steps to eliminate sex discrimination and, which extends to a duty to eliminate discrimination in (systemic) employment practices such as recruitment, remuneration and flexible workplace arrangements. In commenting on the background to the GED, the UK's Equal Opportunity Commission site says:
"Previous legislation relied heavily on individuals taking action to challenge discrimination. However, many people find the idea of taking legal action on their own very daunting. Also, individual cases have a limited impact on systemic causes of discrimination. For example, one employee could win an equal pay case but this would not necessarily mean that the person at the next desk or the next department would not suffer unequal pay as a result. The gender equality duty does not replace legal cases but is an additional tool for tackling discrimination and promoting equality".
In the United States, prudent employers are particularly vigilant about preventing and addressing unlawful discrimination and harassment in the workplace. This too applies to Australia, although in the US the reputational issues and potential for significant monetary consequences from complaints made under anti-discrimination laws can be considered especially high stakes in a climate where class action type remedies are available. In Australia our anti-discrimination laws, at present, do not allow for class action type remedies, although they allow in some circumstances for "representative complaints" which are in relative terms on a smaller scale. To illustrate the potential sheer scale of class action litigation, the largest employment discrimination case ever litigated in the United States is the class action against Wal-Mart. In 2001, Wal-Mart, an American retailer, faced a sex discrimination claim from six female employees who claimed that they had been paid less than their male counterparts, and been bypassed for promotions as a result of their sex. They also claimed that Wal-Mart retaliated against women who had complained about being discriminated against. In 2004, the case was certified as a class action. The class could involve up to 1.6 million potential female complainants. The class consists of women who have worked at Wal-Mart at any time since December 26, 1998.
Anti-discrimination laws have been firmly entrenched in the Australian legal framework for almost 30 years with the commencement of Australia's first piece of legislation of this kind, the federal Racial Discrimination Act 1975. Since then there have been various federal and state and territory anti-discrimination laws which prohibit discrimination on a number of grounds beyond race or nationality, such as sex, age, religion, disability or impairment, age, pregnancy, marital status, parental or carer responsibilities, sexuality, transgender grounds, political membership or opinion, trade union involvement and criminal record.
If developments abroad are to go by, the nature of the area is such that it continues to be an expanding and topical area of law. In this regard, prudent employers should continue to maintain a robust approach when addressing discrimination and harassment in the workplace.
Thanks to Millen Lo and Holly McDonell 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.