Commission submissions: Gunn and Taylor

IN THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

MATTER NO. C2002/1491

BETWEEN

GUNN AND TAYLOR (AUST) PTY LTD Appellant

and

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION Respondent

Submissions of the Human Rights and Equal Opportunity Commission

Introduction

1. The Human Rights and Equal Opportunity Commission ("HREOC") seeks leave to intervene in these proceedings.

Basis on which leave is sought

2. Sub-sections 48(1)(d), (gb) and (h) of the Sex Discrimination Act 1984 (the "SD Act") confer upon HREOC the following functions:

(d) To promote an understanding and acceptance, and compliance with, this Act;

(gb) Where HREOC considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve issues of discrimination on the ground of sex, marital status, pregnancy or potential pregnancy or discrimination involving sexual harassment;

(h) To do anything incidental or conducive to the performance of any of the preceding functions.

3. HREOC performs a wide range of activities in relation to sex discrimination in Australian workplaces and in relation to equal remuneration and pay equity issues pursuant to the following statutory functions:

• Subsections 48(1)(d), (gb) and (h) of the SD Act; and
• Subsections 11(1)(g), (o) and (p) of the Human Rights and Equal Opportunity Commission Act 1986 (the "HREOC Act") which are in similar terms.

4. These activities have included:

(a) In 1998 HREOC produced The Equal Pay Handbook (a copy is attached)

(b) Intervention in the Pay Equity Inquiry before the NSW Industrial Relations Commission (unreported, Glynn J, IRC 97/6320, 14/12/98)

(c) Intervention in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v HPM Industries Case [Print P9210]

5. HREOC has also been involved in proceedings before the Australian Industrial Relations Commission ("AIRC") that have concerned sex discrimination issues including:

• In 1990 HREOC intervened in the Parental Leave Test Case, which established the standard clause for maternity, paternity and adoption leave, currently contained in awards.
• In 1994 and 1995 HREOC intervened in the ACTU test cases that established personal/carers' leave entitlements. Personal/carers' leave gives employees access to their own sick leave to care for a sick relative.
• In 1995 HREOC was represented on the AIRC central working party for the pilot award review process and subsequently intervened in proceedings to adopt the award review principles. A key aspect of this process was the removal of discriminatory provisions from federal awards and the inclusion of a model anti-discrimination clause.
• HREOC has also intervened in a number of National Wage Cases, making submissions on minimum wage levels, particularly as they relate to the protection of living standards and the achievement of pay equity for women.
• In 2000 HREOC intervened in the Australian Metal Workers' Union application to the AIRC seeking an increase in the casual loading for workers under the metals award. The application argued that existing casual loadings no longer compensate employees for the range of entitlements available to permanent employees.
• In 2001 HREOC intervened in the ACTU test case that established unpaid parental leave entitlements for casual workers employed for more than 12 months with the same employer, through the award system.

6. In its report of the National Pregnancy and Work Inquiry, Pregnant and Productive: It's a right not a privilege to work while pregnant HREOC stated at paragraph 8.1 that '[a]ll parties to the employment relationship must operate within both the workplace relations and the anti-discrimination systems in Australia. It is therefore important that they operate together as harmoniously and simply as possible.' Recommendation 20 of the report recommended 'that the Sex Discrimination Commissioner and the [AIRC]… establish formal links and protocols for information sharing and exchange of expertise, with specific reference to sex and pregnancy discrimination issues.'

7. A primary responsibility of HREOC is the resolution of complaints of discrimination under the SD Act. If granted leave to intervene HREOC would seek to provide the AIRC with an overview of its complaint handling function.

8. HREOC submits that the appeal involves issues of general principle and public importance which may affect, to a significant extent, persons other than the parties who are before it. [1] HREOC further submits that it has:

(a) A legitimate concern in making submissions in relation to the human rights of people making equal remuneration applications to the AIRC; [2]

(b) An interest in the subject of litigation greater than a mere desire to have the law declared in particular terms; [3]

(c) An ability to make submissions which the AIRC might consider that it "should have to assist it to reach a correct determination"; [4]

(d) Special knowledge and expertise relevant to the issues the subject of the appeal; and

(e) An ability to make submissions which differ from those of the parties and are likely to assist the AIRC in a way in which the AIRC would not otherwise have been assisted. [5]

9. No practical considerations militate against the granting of leave because:

• All parties, have received adequate notice of HREOC's intention to seek leave to intervene; and
• All parties have received adequate notice of the outline of the submissions proposed to be made by HREOC in the event that leave to intervene is granted; and
• Although some of the submissions made in HREOC's proposed intervention may also be addressed in the submissions of parties, HREOC submits:
  • HREOC's perspective and the sources it will draw on for its submissions are likely to differ from those of the other parties to the appeal. In that sense, there is unlikely to be significant duplication between HREOC's submissions and the submissions of the parties.
  • HREOC seeks leave to present oral argument only to the extent the AIRC indicates it will be assisted by such argument. In making more detailed written submissions on issues which the parties may also address, it is unlikely HREOC's intervention will involve any prejudice to the other parties in the appeals.

Statutory construction

10. Where a statute, such as the Workplace Relations Act 1996 (Cth) ("WR Act"), incorporates or refers to a provision of an international treaty, in whole or in part, the statute must be given the same meaning as the international instrument. [6]

11. If a statute transposes the text of a treaty, or follows the language of the treaty quite closely, interpretation of provisions of the treaty itself may be necessary. In these circumstances, Australian courts and tribunals interpret treaty provisions in accordance with international rules governing treaty interpretation, namely the Vienna Convention on the Law of Treaties 1969. [7]

12. The Vienna Convention provides that the general rule of interpretation is that 'a treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose'.

International Conventions

13. The AIRC is obliged to consider Australia's obligations under international Conventions when considering an application for equal remuneration orders. In exercising its powers under Part VIA Division 2 of the WR Act the AIRC is obliged to take into account principles of anti-discrimination legislation and international obligations. In particular, HREOC submits that these international conventions, while complementary, differ in their objects, fields of operation and terms to such an extent that a remedy sought pursuant to the HREOC Act and the SD Act will not necessarily satisfy international labour obligations.

14. The obligation of the AIRC is made clear in section 3 of the WR Act, which provides:

Section 3 Principal Object of this Act

The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

(j) respecting and valuing the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin; and

(k) assisting in giving effect to Australia's international obligations in relation to labour standards.

15. Specifically, the AIRC is to take into account the Anti-Discrimination Conventions when making an order for equal remuneration for work of equal value. Section 170BA of the WR ACT is in the following terms:

170BA Object

The object of this Division is to give effect, or further effect, to:

(a) the Anti-Discrimination Conventions; and

(b) the Equal Remuneration Recommendation, 1951, which the General Conference of the International Labour Organisation adopted on 29 June 1951 and is also known as Recommendation No. Z and

(c) the Discrimination (Employment and Occupation) Recommendation, 1958, which the General Conference of the International Labour Organisation adopted on 25 June 1958 and is also known as Recommendation No. 111.

16. The Anti-Discrimination Conventions mentioned in s.170BA(a) are defined in s.4 of the WR Act as:

(a) The Equal Remuneration Convention;

(b) The Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW");

(c) The Convention Concerning Discrimination In Respect of Employment and Occupation; and

(d) The International Covenant on Economic, Social and Cultural Rights.

17. Amongst other things, these international conventions commit Australia to respectively:

• Ensuring the application to all workers of the principle of equal remuneration for men and women workers for work of equal value;
• Taking all appropriate measures to eliminate discrimination against women by any person, organisation or enterprise;
• Ensuring the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; and
• Pursuing equality of opportunity and treatment in respect of employment and occupation and eliminating any discrimination in respect thereof.

18. The relevant objects of the SD Act are set out in section 3:

Section 3 Objects

The objects of this Act are:

(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women;

Equal Remuneration Convention (ILO 100)

19. Article 1 of ILO 100 defines "remuneration" and "equal remuneration for men and women workers for work of equal value". The term 'remuneration' is defined as including 'the ordinary, basic or minimum wage or salary and any additional emoluments whatsoever payable directly or indirectly whether in cash or in kind, by the employer to the worker and arising out of the worker's employment'. The term 'equal remuneration for men and women workers for work of equal value' is defined to mean 'rates of remuneration established without discrimination based on sex'. There is no definition of discrimination in this Convention.

20. Under Article 2 of ILO 100 , State Parties are required to promote and ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value by means of national laws, legally recognised machinery for wage determination, or collective agreements between employers and workers. Article 3 makes reference to the promotion of objective appraisal of jobs on the basis of the work to be performed. It also specifies that differential rates, without regard to sex, based on objective appraisal of the work to be performed are not contrary to the principle.

Convention on the Elimination of All Forms of Discrimination Against Women

21. A copy of the CEDAW is included as a schedule to the SD Act.

22. The Preamble makes reference to the Universal Declaration of Human Rights which refers to the inadmissibility of discrimination. It notes that there is an obligation on State Parties to ensure the equal rights of men and women, and that there is concern that discrimination against women still exists.

23. Article 1 of CEDAW defines discrimination against women as including 'any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field'. Article 2 provides that State Parties 'condemn discrimination against women in all its forms' and agree to pursue by all appropriate means a policy of eliminating discrimination against women, including through adopting appropriate legislative measures, and ensuring through competent national tribunals the effective protection of women against any act of discrimination.

24. Article 11 of CEDAW provides that measures to eliminate discrimination against women in the field of employment shall be taken by State Parties to ensure women have the same rights as men in particular, 'the right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work'.

Convention Concerning Discrimination In Respect Of Employment and Occupation

25. Article 2 of this convention requires each State Party to 'pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof'. Discrimination includes any distinction made on the basis of sex (Article 1). Pursuant to Article 3(b) of that Convention, each State Party undertakes 'to enact such legislation…as may be calculated to secure the acceptance and observance of the policy'.

International Covenant on Economic, Social and Cultural Rights

26. Article 7 of this convention provides that States Parties recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular, 'Remuneration which provides to all workers as a minimum…Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work' (Article 7(a)(i)). Article 3 requires the States Parties 'to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant'. Article 2(1) requires States Parties 'to take steps…to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures'.

The Differences Between The Conventions

27. HREOC submits that while these international conventions are complementary, there are significant differences between them. First, the object and field of operation of CEDAW is much broader than the Equal Remuneration Convention or the Convention Concerning Discrimination In Respect Of Employment and Occupation in that these conventions are limited to the field of employment. On the other hand, CEDAW only applies to discrimination against women whereas the Equal Remuneration and Discrimination (Employment and Occupation) Conventions apply to all workers.

28. Secondly, the relevant articles of the conventions are expressed differently. Article 11(1)(d) of CEDAW not only obliges State Parties to undertake all appropriate measures to ensure that women have the right to equal remuneration but also to ensure that women have the right 'to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work'. The Equal Remuneration Convention is restricted to promoting and ensuring equality of remuneration, as defined in Article 1 (see above).

29. Article 2(1) of the Equal Remuneration Convention states that the means for ensuring the application of the principle of equal remuneration for men and women workers for work of equal value need only be implemented so far as they are appropriate to, and consistent with, the methods in operation for determining rates of remuneration. This qualification is not replicated in Article 11(1) of CEDAW, where State Parties are obliged to 'take all appropriate measures'.

30. The fact that the WR Act requires the AIRC to give effect to a wider range of international obligations, which are, in many cases, more specific in their application than the international obligations to which the SD Act gives effect supports a conclusion that the remedies available under those pieces of legislation are not coextensive.

Legislative framework

The Workplace Relations Act 1996

31. HREOC submits that the objects of the WR Act, particularly Part VIA Division 2, are broader in scope and operation than the objects of the SD Act and HREOC Act. Further, the terms of the legislation are different. The definition of 'discrimination' adopted by the AIRC differs to that set out in the SD Act. HREOC submits that that difference means that the exercise of determining whether unlawful discrimination under the SD Act has occurred is different to the exercise engaged in by the AIRC in determining whether there is equal remuneration for work of equal value.

32. The legislative framework in which the AIRC operates has developed in recent times in respect to discrimination matters. Since 1992, section 93 of the WR Act has required the AIRC in the performance of its functions generally to 'take account of the principles embodied in the …Sex Discrimination Act relating to discrimination in relation to employment'.

33. The equal remuneration provisions, sections 170BA to 170BI, have been operative since 30 March 1994 as a result of the Industrial Relations Reform Act 1993. Later amendments to the WR Act did not alter the substance of these provisions. The relevant provisions provide:

170BB Equal remuneration for work of equal value

(1) A reference in this Division to equal remuneration for work of equal value is a reference to equal remuneration for men and women workers for work of equal value.

(2) An expression has in subsection (1) the same meaning as in the Equal Remuneration Convention. Note: Article 1 of the Convention provides that the term "equal remuneration for men and women workers for work of equal value" refers to rates of remuneration established without discrimination based on sex.

170BC Orders requiring equal remuneration

(1) Subject to this Division, the Commission may make such orders as it considers appropriate to ensure that, for employees covered by the orders, there will be equal remuneration for work of equal value.

(2) Without limiting subsection (1), an order under this Division may provide for such increases in rates (including minimum rates) of remuneration (within the meaning of the Equal Remuneration Convention) as the Commission considers appropriate to ensure that, for employees covered by the order, there will be equal remuneration for work of equal value.

(3) However, the Commission may make an order under this Division only if:

(a) the Commission is satisfied that, for the employees to be covered by the order, there is not equal remuneration for work of equal value; and

(b) the order can reasonably be regarded as appropriate and adapted to giving effect to:

(i) one or more of the Anti-Discrimination Conventions; or

(ii) the provisions of the Recommendation referred to in paragraph 170BA(b) or (c).

170BD Orders only on application

The Commission must only make such an order if it has received an application for the making of an order under this Division from:

(a) an employee, or a trade union whose rules entitle it to represent the industrial interests of employees, to be covered by the order; or ]

(b) the Sex Discrimination Commissioner.

170BE No order if adequate alternative remedy exists

The Commission must refrain from considering the application, or from determining it, if the Commission is satisfied that there is available to the applicant, or to the employees whom the applicant represents, an adequate alternative remedy that:

(a) exists under a law of the Commonwealth (other than this Division) or under a law of a State or Territory; and

(b) will ensure, for the employees concerned, equal remuneration for work of equal value.

34. In relation to section 170BE, the Senate's Explanatory Memorandum for the Industrial Relations Reform Bill 1993, at page 24 states that '[t]he alternative remedy must be one that will ensure equal remuneration for work of equal value…; by this test, the alternative remedy will satisfy the relevant treaty obligations…The adequacy of the remedy will be assessed in the context of this new Part IVA of the IR Act, and in the context of the treaties implemented. Even if that alternative remedy might be found, as a matter of international law, to meet the treaty obligation (although perhaps only just meet it), the Commission [the AIRC] will be able to give the applicant a remedy when the alternative remedy is inadequate. This will avoid technical jurisdictional arguments defeating the benefit of this law.'

35. At page 20 of the House of Representatives' Supplementary Explanatory Memorandum it states that the 'question of whether the alternative remedy is "more appropriate" is not a matter for the AIRC to decide in isolation from the question of whether the alternative remedy is "adequate".'

36. It is clear from the Explanatory Memoranda that Parliament intended that the equal remuneration provisions in the then Industrial Relations Act 1988 (Cth) should do something more than just meet Australia's treaty obligations. Parliament intended that the enactment of section 170BE should 'avoid technical jurisdictional arguments defeating the benefit of this law'. The contention that the SD Act provides an 'adequate alternative remedy' could be classified as just such an argument.

The Sex Discrimination Act 1984

37. The relevant objects of the SD Act are stated in section 3:

Section 3 Objects

The objects of this Act are:

(a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women; and

(b) to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work, accommodation, education, the provision of goods, facilities and services, the disposal of land, the activities of clubs and the administration of Commonwealth laws and programs; and

(d) to promote recognition and acceptance within the community of the principle of the equality of men and women.

38. Unlawful discrimination on the ground of sex may be characterised as direct sex discrimination (as provided for in section 5(1) of the SD Act) or indirect sex discrimination (defined in section 5(2) of the SD Act).

5 Sex discrimination

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

39. Direct sex discrimination occurs where a person of one sex is treated less favourably than a person of the opposite sex in circumstances that are not materially different.

40. Indirect sex discrimination occurs where a condition, requirement or practice is imposed or proposed that has the effect of disadvantaging people of one sex in relation to the other, and this is not reasonable in the circumstances.

41. Section 14(2) of the SD Act provides:

14 Discrimination in employment or in superannuation

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status, pregnancy or potential pregnancy:

(a) in the terms or conditions of employment that the employer affords the employee;

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

42. 'Terms and conditions' include all components of remuneration including superannuation, leave, bonuses, discretionary payments, allowances, performance bonuses, commissions etc.

43. Commissioner Whelan stated at paragraph [19] of her decision, that the definition of discrimination adopted by the AIRC in the Third Safety Net Adjustment and Section 150A Review [Print M5600] and subsequently approved in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v HPM Industries [Print P9210], differs from that in the SD Act. HREOC submits that Commissioner Whelan correctly concluded that the differences between those definitions means that the exercise of determining whether unlawful discrimination under the SD Act has occurred is different to the exercise engaged in by the AIRC in determining whether there is not, for the employees concerned, equal remuneration for work of equal value, defined by the Equal Remuneration Convention as 'rates of remuneration established without discrimination based on sex'.

44. Indirect discrimination is defined in section 5(2) of the SD Act. It provides:

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

45. A reasonableness test applies to indirect discrimination. Section 7B of the SD Act provides:

7B Indirect discrimination: reasonableness test

(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

(b) the feasibility of overcoming or mitigating the disadvantage; and

(c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

46. In the Third Safety Net Adjustment and Section 150A Review at page 19 indirect discrimination is said to occur

'when apparently neutral policies and practices include requirements or conditions with which a higher proportion of one group of people than another in relation to a particular attribute can comply, and the requirement or condition is unreasonable under the circumstances'

47. The SD Act definition pertains to proposed conditions, requirements or practices as well as those in operation, and looks to the disadvantaging effect of those conditions, requirements or practices. The notion of disadvantage is not included in the definition adopted by the AIRC, nor does the definition extend to proposed policies and practices.

HREOC's complaint handling function

Overview of function

48. To assist the AIRC to compare the remedies available under the HREOC Act and those available under the WR Act, HREOC has set out below an overview of the complaints handling process under the HREOC Act and the SD Act. HREOC submits that the remedies available under the HREOC Act are limited in their application to the specified complainant and cannot ensure equal remuneration for work of equal value. The remedies available under Part VIA Division 2 of the WR Act can, and are intended to, redress systemic pay inequities.

49. HREOC has the function set out in s.11(1)(aa) of the HREOC Act to investigate complaints. It provides that:

11 Functions of Commission

(1) The functions of the Commission are:

(aa) to inquire into, and attempt to conciliate, complaints of unlawful discrimination;

50. Provisions relating to this function are contained in Part IIB of the HREOC Act. Prior to the enactment of the Human Rights Legislative Amendment Act No. 1 1999, similar provisions were contained in the SD Act.

51. A person alleging unlawful discrimination may lodge a complaint in writing to HREOC pursuant to s.46P of the HREOC Act. It provides:

46P Lodging a complaint

(1) A written complaint may be lodged with the Commission, alleging unlawful discrimination.

(2) The complaint may be lodged:

(a) by a person aggrieved by the alleged unlawful discrimination:

(i) on that person's own behalf; or

(ii) on behalf of that person and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or

(b) by 2 or more persons aggrieved by the alleged unlawful discrimination:

(i) on their own behalf; or

(ii) on behalf of themselves and one or more other persons who are also aggrieved by the alleged unlawful discrimination; or

(c) by a person or trade union on behalf of one or more other persons aggrieved by the alleged unlawful discrimination.

(3) A person who is a class member for a representative complaint is not entitled to lodge a separate complaint in respect of the same subject matter.

52. Upon lodgement of a complaint with HREOC, the complaint must be referred to the President as provided for in s.46PD. The President must then inquire into the complaint and attempt to conciliate it pursuant to s.46PF(1). In investigating a complaint HREOC may contact the complainant and the respondent requesting more information. If necessary the President may require people to provide information HREOC needs to investigate the complaint pursuant to s.46PI.

53. The President may terminate the complaint if there is no reasonable prospect of settling the complaint by conciliation (see s.46PH(1)(i)). The President may also, at any time during the inquiry, terminate the complaint if she is satisfied that:

• The discrimination is not unlawful (s.46PH(1)(a));
• The complaint was lodged more than 12 months after the alleged discrimination took place (s.46PH(1)(b));
• The complaint is lacking in substance, trivial, vexatious, or misconceived (s.46PH(1)(c));
• The subject matter of the complaint has been adequately dealt with where some other remedy has been sought (s.46PH(1)(d));
• A more appropriate remedy is reasonably available (s.46PH(1)(e));
• The complaint has been adequately dealt with by the Commission or another statutory body (s.46PH(1)(f));
• The complaint could be more effectively dealt with by another statutory authority (s.46PH(1)(g)); or
• The complaint involves an issue of public importance that it should be considered by the Federal Court or the Federal Magistrates Court (s.46PH(1)(h)).

54. If a complaint is terminated the President issues the complainant with a notice of termination, a letter giving full reasons why the complaint was terminated, and a copy of the complaint as provided for in section 46PH(2).

55. If the complainant wishes to have the complaint heard and determined by the Federal Court or the Federal Magistrates Court, the affected person must lodge an application to the court within 28 days of the date of the notice of termination (see sections 46PO(1) and 46PO(2)). The unlawful discrimination alleged in the application must be the same as, or the same in substance as, that alleged in the terminated complaint or arise from the same acts, omissions or practices (see s.46PO(3)).

56. As provided in s.46PO(4), if the court is satisfied that there has been unlawful discrimination the court may make such orders (including a declaration of right) as it thinks fit including:

(a) An order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) An order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) An order requiring a respondent to employ or re-employ an applicant;

(d) An order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) An order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) An order declaring that it would be inappropriate for any further action to be taken in the matter.

Nature of process

57. Complaints can be resolved through conciliation proceedings facilitated by HREOC or through direct negotiations between the parties. While complaint resolution can occur at any stage of the process it is generally the case that conciliation takes place on conclusion of investigation and is voluntary in nature. [8] In some cases an attempt will be made to resolve a complaint either prior to commencement of a formal investigation or before a response to the complaint has been received. This may occur at the instigation of HREOC or the parties.

58. The conciliation process undertaken by HREOC is best defined as 'statutory conciliation'. The National Alternative Dispute Resolution Advisory Council has defined statutory conciliation in the Australian context as:

"….a process in which the parties to a dispute which has resulted in a complaint under a statute, with the assistance of a neutral third party (the conciliator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role. The conciliator may advise on or determine the process of conciliation whereby resolution is attempted, and may make suggestions for terms of settlement, give expert advice on likely settlement terms, and may actively encourage the participants to reach an agreement which accords with the requirements of that statute." [9]

59. Given the nature of the two separate processes provided for in addressing complaints of unlawful sex discrimination - investigation and attempted conciliation of complaints by HREOC and the hearing process by the Federal Court or Federal Magistrates Court, as outlined above - the time taken for a complainant to obtain redress for unlawful discrimination may be lengthier than that of an employee seeking equal remuneration orders under the arbitral processes of the AIRC solely because there are two processes involved. This question of timeliness as an aspect of assessing the adequacy of the remedy was raised before Commissioner Whelan by the union but was not pursued further.

60. Although not apparently forming part of Commissioner Whelan's conclusion, HREOC notes the following matters as regards the issue of timeliness and HREOC's investigation and attempted conciliation of complaints function. There is no backlog of complaints nor significant delay in dealing with complaints lodged. While the average time taken to finalise a complaint is seven months, this is often a result of the complexity of the complaint or delay by the parties. [10]

Nature of orders

61. In terms of its conciliation function, HREOC follows a 'statutory conciliation' model (as defined above) whereby the process and the outcomes of the conciliation are determined by the parties with the assistance of HREOC. Any settlements facilitated by HREOC must accord with human rights and public policy principles. Section 28 of the HREOC Act states:

28 Nature of settlements

The Commission shall, in endeavouring to effect a settlement of the matter that gave rise to an inquiry, have regard to the need to ensure that any settlement of the matter reflects a recognition of human rights and the need to protect those rights.

62. Where an affected party of a terminated complaint elects to make an application to the Federal Court or Federal Magistrates Court under section 46PO, the orders that the court can make if it is satisfied that unlawful discrimination has occurred are quite wide (see section 46PO(4)). However, these orders can only compensate or prevent discrimination in relation to the specified complainant. For example, although section 46PO(4)(b) permits the court to make an order requiring a respondent to perform any reasonable act or course of conduct, that act must be undertaken to redress any loss or damage suffered by the specified complainant. Such an order will not apply, for example, to future female employees of the employer's platemaking department. Further, such an order cannot ensure equal remuneration for work of equal value as section 170BE(b) of the WR Act requires. A court order made pursuant to section 46PO(4) cannot address systemic or future pay inequities.

63. Under section 46PO(4)(d) the court may order a respondent to pay damages to an applicant by way of compensation for any loss or damage suffered by an applicant because of the conduct of the respondent. Under this provision, an applicant may be entitled to retrospective compensation for wages lost due to unlawful discrimination on the part of the respondent. Again this remedy only applies to the specified complainant. It is noted that the union in its application for equal remuneration orders under section 170BD of the WR Act did not seek damages by way of compensation for the female employee involved.

64. Section 170BC(1) provides that the AIRC may make such orders as it considers appropriate to ensure that, for employees covered by the orders, there will be equal remuneration for work of equal value. Such orders may include an order that provides for such increases in remuneration as the AIRC considers appropriate to ensure that, for the employees covered by the order, there will be equal remuneration for work of equal value (see section 170BC(2)).

65. Orders made pursuant to section 170BC can only be prospective given the arbitral powers of the AIRC. The AIRC cannot, for example, award damages to employees by way of compensation for wages foregone due to pay inequities. An order made pursuant to section 170BC would apply to all female employees engaged in the same or substantially similar work to the female employee represented by the union in the present case. Such an order would redress any systemic pay inequities within the platemaking department of the employer's company. Only the AIRC is empowered to undertake such an investigation under Part VIA Division 2 of the WR Act.

Representative complaints

66. Commissioner Whelan at paragraph [24] of her decision, states that '[w]hile the [HREOC] Act does provide for representative actions (section 46PB) it is not clear that an unknown future employee could qualify as a "class member" and section 46PC would suggest that they could not'. HREOC submits that Commissioner Whelan's suggestion is correct.

67. Sections 46PB and 46PC of the HREOC Act provides:

46PB Conditions for lodging a representative complaint

(1) A representative complaint may be lodged under section 46P only if:

(a) the class members have complaints against the same person; and

(b) all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

(c) all the complaints give rise to a substantial common issue of law or fact.

(2) A representative complaint under section 46P must:

(a) describe or otherwise identify the class members; and

(b) specify the nature of the complaints made on behalf of the class members; and

(c) specify the nature of the relief sought.

(3) In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(4) A representative complaint may be lodged without the consent of class members.

46PC Additional rules applying to representative complaints

(1) A class member may, by notice in writing to the Commission, withdraw from a representative complaint at any time before the President terminates the complaint under section 46PH.

(2) The President may, on application in writing by any affected person, replace any complainant with another person as complainant.

(3) The President may at any stage direct that notice of any matter be given to a class member or class members.

68. Section 46PC assumes that the class member is a person in existence. Further, an unknown future employee cannot demonstrate unlawful sex discrimination in order to be eligible for an order under section 46PO of the HREOC Act.

Determining Whether There Is An Adequate Alternative Remedy

69. An exercise of comparison must be undertaken in order to ascertain whether a remedy available under the SD Act/HREOC Act constitutes an "adequate alternative remedy' for the purposes of section 170BE of the WR Act. Determination of the adequacy of alternative remedies requires an assessment of the qualitative differences between the relevant systems or rights.

70. Authoritative guidance concerning the determination of the existence of an "adequate alternative remedy" is provided in decisions of two Full Courts of the Industrial Relations Court of Australia. These decisions are Liddell v Lembke[11] and Fryar v Systems Services Pty Ltd. [12] Both cases concerned the question of whether state industrial systems (NSW in Liddell and SA in Fryar) provided an adequate alternative remedy to rights and protections relating to termination of employment within the meaning of section 170EB of the Industrial Relations Act 1988. The relevant legislation required the Court to decline an unfair dismissal or unlawful termination application if satisfied of the availability to the applicant-employee of an adequate alternative remedy under existing machinery that satisfied the Termination of Employment Convention.

71. An alternative remedy is adequate if it is "equal in magnitude or extent", "commensurate", "equal or amounting to what is required", "fully sufficient", "suitable" or "fitting". [13]

72. As previously submitted, the two systems under the WR Act and the SD Act/HREOC Act have fundamentally different objectives, functions and effects.

73. The process under the SD Act:

(a) Is concerned with the vindication of the human rights of an individual applicant;

(b) Is concerned with the question of whether direct or indirect discrimination, as defined, has occurred. This involves assessing the employer's treatment of a woman compared to that of a man to establish whether less favourable treatment occurred on the basis of sex or whether the effect of rules or practices was different for men and women;

(c) Confines the giving of relief to the individual applicant or applicants who lodged a complaint;

(d) May compensate an individual applicant for past loss caused by unlawful discrimination and may extend to future employment to the extent that the Federal Court may make an order that the employer refrain from continuing the discrimination.

74. Conversely, the process under the WR Act involves an inquiry to ascertain whether rates of remuneration were established with or without sex discrimination. This is far broader as it enables the AIRC to deal with systemic equal pay issues and to make orders:

(a) To change discriminatory provisions surviving in awards or agreements that are a legacy of Australian history in which work was often segregated into "men's work" and "women's work" and where low rates for particular work were set because the work was predominantly performed by women. This is so even where men are now performing the work and where male workers benefit from the equal pay order (eg. male librarians). The WR Act is clear that the AIRC is the appropriate tribunal to deal with these issues - s.40(1) of the SD Act exempts from the discrimination provisions acts by employers done in direct compliance with an award or certified agreement and s.46PW of the HREOC Act requires the President of HREOC to refer discriminatory awards to the AIRC;

(b) Having a structural effect in that the rate of remuneration for particular work applies in the future regardless of the identity of the employee performing the work. The AIRC's orders are not confined to the individual employee currently affected but may extend to other employees at the workplace or employees who will perform the work at a later time.

75. When dealing with an application under s.170BD of the WR Act the central question for the AIRC is not concerned with the gender of the particular employees performing the work but whether the remuneration paid for the performance of the work was established without discrimination based on sex. [14]

76. It is wrong to merely look at the orders available under the relevant pieces of legislation without considering the circumstances under which they could be made or the rights they are intended to vindicate. The remedy cannot be divorced from the right. [15]

77. An important matter attending the determination of a complaint under the SD Act is that the applicant is exposed to an order of the Federal Court to pay the legal costs of the other party. The Federal Court jurisdiction is a "costs" jurisdiction and the power to order costs against unsuccessful litigants is exercised in practice. The power to award costs is so significant that it affects the availability of the remedy itself. [16] The prospect of being ordered to pay the costs of a proceeding is a daunting one for any employee. [17] By reason of s. 347 of the WR Act, the process under s.170BC of the WR Act is one free of the risk that, except where an application is instituted vexatiously or without reasonable cause, an applicant may be ordered to pay another party's legal costs.

78. The powers of the Federal Court to grant relief under s.46PO(4) of the HREOC Act are discretionary. It is therefore difficult for the AIRC to be "satisfied", as required by s.170BE of the WR Act, that there is an adequate alternative remedy, in circumstances where it is given the "difficult, almost invidious, task of estimating how another institution would exercise a statutory discretion reposed in it". To say that the matter should be determined upon the basis of a clear probability is to accept that sometimes the AIRC's estimation will be wrong and the applicant will have been denied relief on the basis of a determination that there was an adequate remedy elsewhere when, in fact, there was not. [18] Additionally, the AIRC should conclude that no adequate alternative remedy is available where an applicant's right under the SD Act is qualified and it is impossible to know whether the alternative remedy is adequate until a proceeding in another tribunal is concluded. [19]

79. The power of the President of HREOC to accept or terminate a complaint of discrimination is discretionary. Under s.46PH(1)(b) the President may terminate a complaint on one of a number of stated grounds. While the President's discretion is not unfettered, and must be exercised in accordance with the objects of the SD Act, an applicant's right to complain is qualified and subject to specific discretionary considerations. An entitlement to seek to satisfy the President that the discretion to terminate the complaint should not be exercised is clearly inferior to an unqualified entitlement to have a determination on the merits. [20]

80. The wishes or intentions of an applicant for an order under the WR Act are also relevant. It is relevant that an applicant may wish to obtain orders covering a number of employees, including prospective employees. [21] A further qualitative difference concerns the ability of a union to be an applicant in a proceeding. It is clear that under s.170BD of the WR Act that a union whose rules entitle it to represent the industrial interests of employees to be covered by the order may apply for an order. Under the SD Act a union may lodge a complaint of unlawful discrimination on behalf of a member under s.46P(2)(c), however, the union's ability to prosecute the complaint in the Federal Court is qualified in that it must establish that it is a "person affected" under s.46PO(1).

81. It is clear that the WR Act contemplates the availability of other remedies - s.170BHA reflects this. If Parliament had wished to deprive the AIRC of jurisdiction whenever women employees denied equal remuneration for work of equal value have a remedy available under the SD Act, it would have been very easy for Parliament to have said so. It would have been easy to provide that the AIRC simply had no jurisdiction. [22]

1. United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520 at 534.

2. Australian Railways Union v Victorian Railways Commission (1930) 44 CLR 319 at 331 per Dixon J.

3. Kruger v Commonwealth of Australia (1996) 3 Leg Rep 14 per Brennan CJ.

4. Levy v State of Victoria (1997) 189 CLR 579 at 603 per Brennan CJ.

5. Levy v State of Victoria (1997) 189 CLR 579 at 604 per Brennan CJ.

6. De L v Director General, NSW Department of Community Services (1996) 187 CLR 640.

7. De L v Director General, NSW Department of Community Services (1996) 187 CLR ʀ Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1996) 62 IR 200 at 204.

8. HREOC does have compulsory conciliation powers contained in section 46PJ of the HREOC Act, but these are rarely used.

9. National Alternative Dispute Resolution Advisory Council, ADR Definitions Paper, 1997

10. The following statistics taken from HREOC's annual report 2000-01 are illustrative:

• HREOC's stated performance measure is for 75 per cent of complaints to be finalised within twelve months of date of receipt. In 2000-01 88 per cent of matters were finalised within twelve months and the average time from receipt to finalisation of a complaint was seven months.
• HREOC's stated performance measure is for 30 per cent of finalised complaints to be conciliated. In 2000-01 this goal was exceeded with a 35 per cent conciliation rate.
• HREOC's stated performance measure is for 60 per cent of parties to be satisfied with the complaint handling process. Data for 2000-01 indicates that 86 per cent of parties were satisfied with the service they received. Of this 86 per cent, 52 per cent rated the service they received as 'very good' or 'excellent'.
• In 2000-01 HREOC received 339 complaints under the SD ACT. The majority of these complaints related to employment. HREOC finalised 359 complaints under this Act and 39 per cent of these finalised complaints were conciliated.
• Of the complaints received and finalised under the SD ACT in 2000-01, 27 per cent were finalised in less than 3 months; 24 per cent in a three to six month timeframe; 23 per cent in a six to nine month period; and 14 per cent in a nine to twelve month. Eleven per cent of complaints took more than 12 months to finalise; and one per cent of complaints took longer than 18 months.

11. (1994) 127 ALR 342 and (1994) 56 IR 447 (Wilcox CJ, Keely and Gray JJ).

12. (1995) 130 ALR 168 and (1995) 60 IR 68 (Wilcox CJ, Gray and Beazley JJ).

13. Liddell v Lembke (1994) 127 ALR 342 at 351-352 (Wilcox CJ and Keely J).

14. AMWU v David Syme & Co. Ltd (1999) 97 IR 374 at 380-381 (Ross VP).

15. Liddell v Lembke (1994) 127 ALR 342 at 358-359 (Wilcox CJ and Keely J).

16. Liddell v Lembke (1994) 127 ALR 342 at 363 (Wilcox CJ and Keely J).

17. Liddell v Lembke (1994) 127 ALR 342 at 370 (Gray J).

18. Liddell v Lembke (1994) 127 ALR 342 at 356 (Wilcox CJ and Keely J) and 370 (Gray J).

19. Liddell v Lembke (1994) 127 ALR 342 at 369-370 (Gray J).

20. Liddell v Lembke (1994) 127 ALR 342 at 355 (Wilcox CJ and Keely J).

21. Liddell v Lembke (1994) 127 ALR 342 at 357 (Wilcox CJ and Keely J).

22. Liddell v Lembke (1994) 127 ALR 369 (Gray J).

Last updated 20 May 2003.