Launch of IR postcards in community languages

25/10/2006

by Helen Szoke
Chief Executive Officer
Equal Opportunity Commission Victoria
Launch of IR Community Languages Postcards

I wish to begin by paying my respects to the traditional owners of the land, the peoples of the Kulin Nation, and to pay my respects to their elders and any elders who may be present here today

In the last financial year, the Commission received a number of enquiries and complaints from people whose first language was not English, and who suffered discrimination in the work place. What we know about the work place is that the people who are subject to this type of behaviour are often marginalized and feel powerless. That is what is important about raising awareness about the rights of all workers, particularly those whose first language is not English.

Take for example these cases that we have considered at the Commission:

1. Chris is Turkish and is a Muslim. He worked in a car dealership and during the course of his employment he alleges staff would make comments to him such as “all Muslims should be slaughtered” and referred to him as a terriorist. Due to the racial taunts he resigned.

Outcome: Resolved via conciliation for $4000 pain and suffering, letter of regret and equal opportunity training.

2. Stella is Cambodian and worked as a process worker. She alleges her supervisor made comments regarding her race to her directly and to other staff who later told me what had been said. Her supervisor implied that she was the enemy of Australian people by comparing her to the Viet-cong. He also called me a “gook, “spook”, “slanty” and “slopey.” She was told that he would also refer to her as a “slopey eyed bitch” in order to indicate how much he disliked me. She found this comments embarrassing and upsetting and informed her employer who did not take the matter seriously.

Outcome: Settled for $10,000 and equal opportunity training/policy.

3. Neema is Muslim and worked in a café. She commenced wearing hijab at work and a work colleague made repeated rude comments to about the hijab such as it will bring terrorists to the store and why did she have to wear it. She resigned because of the comments.

Outcome: Settled for verbal apology and equal opportunity training for individual respondent.

It is important that the work that has been done with employers in the State of Victoria for the last 30 years, highlighting the damaging effects of all forms of discrimination continues at a time when we have what is “ … the greatest single change to the Australian federal labour law since the turn of the twentieth century. In particular, it marked the virtual abandonment of the use of arbitration by an independent tribunal, the Australian Industrial Relations Commission (AIRC), as a means of establishing minimum working conditions.’

What is happening with discrimination and employment?

Operating at a time of relative prosperity and where there have been thirty years of antidiscrimination legislation
Trend for many to now incorporate equal opportunity considerations into their businesses and to try to ensure that individual grievances and complaints are dealt with in house
Discrimination still occurs both in employment and in the provisions of goods and services, but we are dealing with something which is systemic and more entrenched and more subtle in many cases and this poses a challenge for the future.

What is happening in the world of work?

February 2006 unemployment is at 5.2% in October 2006 it was less than 5%.
However, this fails to acknowledge the large number so underemployed and hidden unemployed.
Casual and other non-standard forms of employment are rising e.g. in 2003, over a quarter of the Australian workforce was casually employed;
Wage Inequality continues – eg women’s average weekly earnings continue to be less than their male counterparts in all industries;
Women are adversely affected in relation to their careers because a large no of women rely on part time work so that they can balance work life and family life and we still have yet to tackle this in a systematic way in relation to building protections and indeed incentives for this to occur;
Finally Australia is distinguished in having some of the longest working hours in the Organisation for Economic Cooperation and Development (OECD)
In all of these issues there is potential discrimination that occurs against a backdrop of increasing powerlessness of employees:

Carer status
Pregnancy and return to work
Part time and work life balance needs
Flexible working hour

Again those groups that are most affected by the hidden unemployment are those groups who are likely to be subject to discrimination, women, people with carer responsibilities, and people who are not able to represent their interests clearly and forcibly because of language, because of seniority in the work place, because of different cultural beliefs and traditions.

Information about the rights that workers have is critical in this time where there is demonstrated lack of understanding about the implications of the Work Choices legislation and what the respective rights and responsibilities of employees and employers are. We are confident, however, that the Equal Opportunity Act remains an effective tool for dealing with any discrimination that arises in Victorian workplaces, and that our Act can operate alongside the WorkChoices legislation to ensure that discrimination on the basis of the various attributes listed in the Act remains unlawful.

This month saw some amendments to the Equal Opportunity Act that may also work to ensure that employees’ and employers’ rights and responsibilities are fairly meted out. The most relevant relate to complaints by a person on behalf of another person, complaints by representative organizations and expanded categories of industrial activity discrimination.

The Commission can now accept a complaint from a person (an advocate or authorized agent) on behalf of a person or group of people. This can occur if the represented person is entitled to complain under the Act in their own right and has consented to the complaint being made. It is envisaged that this amendment will be particularly useful in situations where, for a variety of personal reasons, including language impediments, a person does not wish to lodge a complaint themselves, but instead would prefer someone they trust to lodge it on their behalf.

The Commission can also now accept a complaint of discrimination lodged by a representative organization. A representative organization may complain on behalf of a named person or people provided the Commission is satisfied:

That each person named in the complaint is entitled to complain;
Each person named in the complaint has consented to the complaint being made;
A representative organization has ‘sufficient interest’ in the complaint; and
The complaint refers to a single allegation or set of allegations which affects each person named in the complaint.

This new ‘representative complaints’ mechanism is expected to have great utility in situations where individuals are reluctant to lodge a complaint because of, for example, intimidation about ‘going it alone’, financial or other personal barriers. A similar representative complaints mechanism has also been particularly effective for complaints of racial and religious vilification under the Victorian Racial and Religious Tolerance Act.

It is also anticipated that the representative complaints mechanism will be successful in addressing ‘systemic discrimination’, where an issue affects a large number of people in the workplace. This could include, for example, an offer of an AWA to a group of employees that discriminates against a number of them on the basis of a particular attribute they share, such as religion or parental status.

Recent amendments to the Equal Opportunity Act also include expanded categories of industrial activity discrimination and recognize less formal groupings of employees, particularly those with no particular connection or affiliation with a union.

In the past a complaint of industrial activity discrimination was limited to allegations concerning membership or non-membership of, joining or refusing to join, or participating or refusing to participate in lawful activities organized by an industrial organization. Complaints of industrial activity discrimination can now additionally refer to:

Establishing or forming and industrial organization or association
Organising or promoting a lawful activity on behalf of an industrial organization or association
Encouraging, assisting or participating in a lawful activity organized or promoted by an industrial organisation or association
Representing or advancing the views clams or interests of members of an industrial organization or association.

In keeping with developments in case law, the Act now makes clear that discrimination on the basis of these kinds of ‘industrial activity’ includes things done by an ‘industrial association’. This new term is now defined in the Act as including a group of employees informally convened to represent or advance their views, claims or interests. In other words, it’s now not necessary to undertake industrial activity formally sanctioned through an association with a union, for a claim of unlawful discrimination on the basis of industrial activity to be made out.

I hope that these amendments will bring the Equal Opportunity Act up-to-date with developments in the community and the workplace, such that it remains a relevant and useful tool for ensuring that workers are free from discrimination in the workforce.

As these amendments suggest, it is important that equal opportunity laws evolve over time to remain effective. Next year marks thirty years of anti discrimination legislation in Victoria. In that time the Equal Opportunity Act has gone through a number of amendments or ‘reincarnations’, and these have ensured that it remains viable for protecting people from discrimination in areas of employment. The existence of equal opportunity laws has also meant that employers have introduced equal opportunity policies, have trained staff and work places have been more equitable. But we also know that there is much to be done and that discrimination does occur. And we know that the challenge is to ensure that people are clear enough about their rights to feel comfortable to assert those rights.

These postcards are a small tool, but with their saturation into the community networks, we hope the message will get across. That combined with legislative provisions that make our complaints processes more supported and more accessible for LOTE workers should ensure that the protections that have been in place for the last thirty years continue to offer protection against discrimination for workers in Victoria, and guidance for employers in this state. Thank you.

Click here to see the postcards