Report of Inquiry into a Complaint of Discrimination in Employment and Occupation
Human Rights Commissioner Report No.3 - October 1997
Report to the Attorney-General on an inquiry by the Human Rights and Equal Opportunity Commission (the Commission) into a complaint of discrimination on the ground of trade union activity under the Human Rights and Equal Opportunity Commission Act 1986 (Cth)(the Act).
The Commission has no power to make enforceable determinations in respect of complaints under the Act. However, the Commission may report to the Attorney-General on its findings and recommendations in such complaints. The Attorney-General is then required to table the report in Parliament. The reporting process is sometimes used where the complaint cannot be resolved by conciliation or where (as in this case) the Commission wishes to draw the Attorney-General's attention to the need for legislative change.
This report concerns discrimination in employment based on trade union activity. The right of workers to participate in trade union activity without interference and discrimination is recognised in International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 (ILO 111). This and other grounds of discrimination in ILO 111 fall within the Commission's complaint jurisdiction.
The complainant submitted that her participation in trade union activity was improperly taken into account by employees of the respondent in assessing her application for promotion. The respondent, a federal government agency, submitted that the complainant was unsuccessful in her application for promotion for reasons other than her trade union activity.
The Human Rights Commissioner issued his findings and recommendations in relation to the complaint. He found that the complainant suffered discrimination in employment within the terms of the Act because her trade union activity was taken into account improperly in assessing her application for promotion. He did not find that she was denied promotion solely because of this improper consideration of her trade union activity. However, the fact that her trade union activity was at least a partial consideration was sufficient to sustain the complaint. He recommended that the respondent pay the complainant $2,000 as compensation for injury suffered as a result of the discrimination. The respondent accepted the recommendation for the payment of compensation to the complainant. The Human Rights Commissioner welcomed this response and congratulated the respondent on it.
In previous reports to the Attorney-General the Human Rights Commissioner has recommended the enactment of comprehensive national laws to prohibit discrimination on the basis of age to resolve inadequacies in federal legislation. This need applies to all grounds in ILO 111 that are not already the subject of more effective federal legislation. It includes trade union activity and also religion, political opinion, social origin, medical record, criminal record and sexual preference. The Commissioner expressed the view that the time has come for the enactment of comprehensive federal anti-discrimination law to ensure effective protection from discrimination through enforceable remedies.