"I'm the boss, so that's the way it is!"
Australian Public Service Leadership Lunchtime Seminar, Delivered by John von Doussa QC, President, Human Rights and Equal Opportunity Commission, 24 November 2004
I would like to begin by thanking the Australian Public Service Commission (APSC) for inviting me to address you today, and to thank you for your attendance.
I would also like to acknowledge that we are meeting on the traditional country of the Gadigal People, of the Eora Nation.
I have deliberately chosen a provocative title for this seminar.
You might laugh at it dismissively, but all too often the sort of complaints under federal discrimination law that come before me as the President of the Human Rights and Equal Opportunity Commission (HREOC) reflect the persistence of a mindset amongst a minority of managers that they are a law unto themselves. They consider themselves the boss, with their own rules that entitle them to impunity from any disciplinary or legal recourse and even from displaying respect or good manners.
Recently, employer groups have been increasingly vocal in their opposition to anti-discrimination legislation in Australia. This opposition is particularly directed to legislative provisions regarding the obligations of employers to prevent indirect discrimination in the workplace, and the penalties they may face if they are found to be vicariously libel for the unlawful conduct of their own employees.
It has been suggested that Australian anti-discrimination legislation goes too far and places unwieldy and even unnecessary burdens on employers. Criticism has also been expressed that the federal Sex Discrimination Act 1984 (the SDA) already has been effective in changing behaviour and therefore special measures to achieve equality of outcomes between the sexes are no longer required. Further, it is argued that the continued use of special measures for the benefit of women in certain circumstances can result in outcomes that disadvantage men.(1)
The emergence of these arguments in the national debate is particularly disheartening, given that contemporary experience and research shows that precisely those forms of sex discrimination that are expressly prohibited by the legislation, continue in the Australian community, particularly in the workplace.(2) The types of discrimination I am talking about in the context of the SDA include sexual harassment and other forms of discrimination on the basis of:
- Marital status;
- Pregnancy or potential pregnancy; and
- Family responsibility.
Much of what I intend to focus on today relates to the experience of women in the workplace, simply because from the complaints HREOC receives, it is predominantly women who are the subject of most acts of discrimination and harassment at work.
That is not to suggest that women are the sole victims of these unlawful acts, but that they are disproportionately affected by these types of behaviour. For example, of the 353 complaints HREOC received under the SDA in the last financial year, 305 were lodged by women,(4) and 88% of all complaints under the SDA related to alleged discrimination in the workplace. (5)
My focus on discrimination and harassment of women in the workplace should not suggest that discrimination on other grounds, such as disability or race, are not equally concerning and ongoing problems in the Australian community.(6) Statistics do not show a decline in the number of official complaints being made to authorities like HREOC. Perhaps this is partly due to growing public awareness about anti-discrimination laws causing more victims to complain, but on any interpretation of the figures a very real problem continues.
As today is hosted by the APS Commission, what I will say is primarily directed to the APS workplace, but it will be apparent as I go along that identical issues exist in other workplaces.
I intend to draw on a few case study examples from our Complaint Handling Section which indicate the type of conduct that has occurred in the APS that has led to discrimination and harassment, or has exacerbated it, and suggest preventive action that could be taken. Then I intend to discuss the growing number of complaints HREOC is receiving from women who allege discrimination in the workplace related to their child-care responsibilities.
But before doing that, I think it is helpful to outline the overall complaint handling function of HREOC, and its other statutory functions, because some of these functions have enabled us to undertake research and develop strategies to combat the incidence of harassment and discrimination in the workplace.
Commission's role and functions
The Commission occupies a unique place in Australian society. It sits independent of Government, yet it is not what is traditionally known as a non-government organisation or an advocate. It is a statutory authority responsible for the observance of human rights in Australia. Broadly speaking the Commission is responsible for:
- Receiving and processing complaints of discrimination or breaches of human rights under federal laws;
- holding public inquiries into issues of national importance, such as the forced separation of Aboriginal children from their families, and more recently the rights of children in immigration detention centres;
- intervening or acting as amicus curiae in important legal cases that affect the human rights of people in Australia;
- providing advice and assistance to parliaments and governments to develop laws, programs and policies;
- researching human rights and discrimination issues; and
- developing human rights education programs and resources for schools, workplaces and the community.
The work of the Commission is guided by the five federal laws that it is responsible for administering:
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Disability Discrimination Act 1992
- Human Rights and Equal Opportunity Commission Act 1986
- Age Discrimination Act 2004
These Acts make certain types of behaviour unlawful -not criminal - and provide civil remedies against employers where breaches are found to have occurred. These remedies can be very expensive, and provide a material incentive for all employers, whether in the public or private sector, to instil appropriate professional workplace behaviour in all of their staff.
As the President of HREOC, one of my functions is to investigate and attempt to conciliate complaints under each of these pieces of anti-discrimination legislation. The Federal Court and Federal Magistrates Court can determine complaints that are not able to be conciliated by HREOC, and the Courts' decisions are enforceable.
In addition, under the HREOC Act, the President can also receive complaints of discrimination in the workplace on grounds that go beyond those in the specific anti- discrimination Acts, such as on the grounds of religion, trade union activity, criminal record, political opinion, and sexual preference. Where these complaints are not able to be conciliated, and I am satisfied that there has been discrimination in employment, I can report to the Attorney-General on the matter, and recommend payment of damages or compensation. My recommendations are not binding, but the Attorney is required to table my report in the federal parliament.
hat behaviour is unacceptable and unlawful in the workplace?
There is considerable material produced by the APS Commission and HREOC that elaborates on what constitutes sex discrimination and sexual harassment in the workplace. These materials are freely available on our respective websites(7) and provide clear guidance on how to interpret the provisions of the SDA that define 'conduct of a sexual nature', 'unwelcome conduct' and how the 'reasonable person test' should be applied. Hence I do not intend to elaborate on these points today.
What I do want to emphasis is that harassment, discrimination, and bullying, if allowed to occur and persist, can have very serious consequences on the health and wellbeing of the target of the unwelcome conduct.
For the employer, the results are likely to include disruption to the efficiency of the organisation, a breach of Occupation, Health and Safety rules, and a workers compensation claim or an expensive common law claim for failure to maintain a safe working environment.
It therefore makes economic sense for management to take a preventative approach to harassment, discrimination and bullying.
Over the last 25 years, the problem of harassment and discrimination in the workplace, as well as in all areas of public life, has been addressed in legislation and within the APS. Obligations have been imposed on both employers and employees.
As you are aware, all APS employees are required to comply with:
- Workplace Relations Act 1996 and the Occupational Health and Safety (Commonwealth Employment) Act 1991; as well as
- APS Code of Conduct, as set out in s13 of the Public Service Act 1999 (PS Act).
The Code of Conduct directly prohibits harassment:
"An APS employee, when acting in the course of employment, must treat everyone with respect and courtesy, and without harassment."
It also requires that:
- APS employees must comply with other Australian legislation,(8) which of course includes the major federal anti-discrimination Acts I referred to earlier; and
- APS employees must at all times behave in a way that upholds the APS Values as set out in s.10(1) of the PS Act.(9)
An employee who fails to observe any of these requirements may be found to have breached the Code of Conduct and consequently be subject to a sanction under s15 of the PS Act.
Furthermore, the APS Commission has made it very clear that the community sets the bar much higher for public servants as compared to other workers in terms of what constitutes acceptable or ethical behaviour. This stems from the fact that APS employees are "exercising authority on behalf of the Government and the Parliament,"(10) and should "merit the respect of the public in [their] official dealings".(11)
Agency Heads and members of the Senior Executive Service are therefore subject to still higher standards. They are required to be role models in terms of how they promote and uphold the APS Values - to lead by example - and to instil the Values in all employees from top to bottom of the organisation through information and training sessions.
Having said this, it is not expected that managers rigidly uphold and instil superhuman standards in others - rather that they apply the Values and the Code of Conduct with flexibility and discretion to ensure that basic standards of personal conduct are maintained in the workplace - so it is a harmonious, efficient and professional workplace.
In the context of workplace relationships, this requires managers (amongst other things) to:(12)
- provide a workplace that is free from discrimination, and one that is fair, flexible, safe and rewarding;
- establish workplace relations that value communication, consultation, cooperation and input from employees on matters that affect their workplace; and
- provide a fair system of review of decisions taken in respect of APS employees.
The APS Commission has published a comprehensive range of materials setting out the APS requirements, and guidelines to prevent harassment, which I am sure you are familiar with. I do not intend to recite them, but I commend their re-reading from time to time, particularly the following:
- the booklet "Maintaining a harassment- free workplace,"
- the publication entitled APS Values and Code of Conduct in Practice and
- the APSC's Good Practice Guide, Embedding the APS Values.
Case study - sexual harassment
Notwithstanding all the steps taken within the APS, and workplaces generally, regrettably harassment and discrimination persist.
Rather than concentrating on what managers should do, I think it will be more instructive to illustrate some things that they should not do.
I will refer to examples of bad practice. They demonstrate the consequences when complaints, and situations of harassment and discrimination, are not dealt with effectively at the outset.
One example from the APS, which was brought to HREOC as a complaint under the Sex Discrimination Act 1986, is now a case study in our Annual Report for 2003-04.(13)
The complainant, who was employed by a large Commonwealth Government agency, alleged sexual harassment by her manager. The complainant also alleged that the department was vicariously liable for the actions of the manager (an issue I will elaborate on shortly).
The complainant alleged that her manager:
- told her she was very attractive;
- asked her out on a few occasions;
- often acted inappropriately toward her;
- told sexually explicit jokes;
- discussed sex shows that he said he frequented; and
- had sexually explicit photos in the workplace.
The complainant resigned from her position and claimed that when her personal belonging were returned to her, the package contained sexually explicit photos that belonged to the manager.
The government agency claimed that:
- the complainant had not advised anyone of her allegations at the time or when she left the agency, and therefore it had been unable to deal with the allegations;
- it had comprehensive policies about sexual harassment and staff were trained in these policies during their initial induction.
The matter was resolved through a conciliation process, whereby the complainant agreed to withdraw her complaint in return for payment of $45,000 compensation, a statement of service from the agency and a work reference from the manager.
Internal complaint procedures
In hindsight, it is easy to point out where this problem should have been dealt with before it even reached the level of a formal complaint, and certainly before the staff member felt compelled to resign. But for whatever reason, none of the preventative measures came into play.
The complainant did not appear to be aware of internal complaint procedures that could have been accessed when the sexually explicit behaviour was first alleged. Either she did not know or did not recall from her induction that these procedures were available to her, or she did not have confidence that they would satisfactorily resolve the situation to the point where she would be able to continue working in the agency.
As I mentioned earlier, the provision of a fair system of review is critical to ensure that employees:(14)
- are comfortable about reporting wrongdoing,
- have confidence that a complaint will be investigated fairly and reasonably, and
- that employees will respect any sanctions that are imposed.
A key part of ensuring that staff are comfortable about reporting wrongdoing is having Harassment Contact Officers and/or Managers who are well trained in dealing with such allegations.
Each agency has a responsibility to invest in training and skilling the relevant staff members. It should not be assumed that people acquire these skills by virtue of the fact they hold senior positions or appear to be a 'people person'. Training should emphasis:
- the harm that can be experienced by individuals who are subject to sexual misconduct, bullying or harassment, and how the level of harm is accentuated by the power imbalance that tends to exist between the perpetrator and the target; and
- the nature of the compensation packages that victims are entitled to, including financial compensation as well as non-monetary compensatory measures.
It is also important that the system of review be internal in the first instance, but that where required by one of other of the parties, recourse to an independent review process is also available.(15)
Having these two levels of investigation and assessment in place makes it more likely that a real resolution can be achieved, and that there will be both the perception and the reality that all parties received a fair and reasonable hearing and outcome. It lessens the possibility that matters will escalate to the point where a complaint is lodged with HREOC, or in a worse case scenario that the matter will end up being referred to the Federal Court or the Federal Magistrates Court.
A further incentive for agencies to have a comprehensive sexual harassment policy and an effective complaint handling procedure is provided by s.106 of the SDA. This provision establishes that an employer is vicariously liable for an act of discrimination or harassment that occurs 'in connection with' the employment of a member of staff.
Once a member of staff establishes that unlawful act occurred in connection with their employment, the onus of proof shifts to the employer to demonstrate that it took 'all reasonable steps' to prevent the discrimination or harassment.
The case law in this area suggests that for employers to discharge this onus they need to establish that they:
- developed and implemented a sexual harassment policy which clearly explains what constitutes sexual harassment,
- communicated this policy to all new staff at the commencement of their employment,
- made written copies of the policy available in the workplace,
- made sure all staff are familiar with the sanctions that attach to any breaches of the policy and the course to be followed by any employee who feels sexually harassed; and
- provided periodic follow up promotion of the policy.(16)
The Courts have held that larger employers will be expected to do more than small businesses in order to establish that they have taken all reasonable steps.(17)
Courts have also made it very clear that 'mere ignorance or inactivity'(18) is not a defence for any employer. Nor is it sufficient that the employer has developed an appropriate policy - the policy must be implemented, and key to this is the effective operation of a complaint handling procedure.(19)
HREOC's experience in investigating complaints about the manner in which one federal agency handled allegations of sex discrimination and sexual harassment (of which it has had several), exemplifies most of the characteristics that should not feature in internal complaint procedures. This particular agency allowed the following to occur:
- In cases where sexual assault was alleged, the respondent and complainant continued to work in the same workplace;
- Internal investigation procedures were slow;
- Parties to a complaint were not updated on the stage the investigation was at, nor were they routinely advised of the outcome;
- The agency had a high threshold to determine if a complaint was substantiated (a complaint needs only to be established on the balance of probability);
- It appears that the agency perceived the problem to be that an individual staff member saw fit to lodge a complaint, rather than the actions that gave rise to the making of the complaint;
- Complainants were often referred to medical professionals as a consequence of lodging a complaint, which added to the perception that some degree of fault rested with the complainant.
Discrimination on grounds related to childcare responsibilities
A growing source of complaints to HREOC under the SDA is from women returning to work after maternity leave whose requests for part time work or flexible hours to meet child-care responsibilities have been denied.(20)
Complaints on these grounds comprised nearly 30% of all complaints to HREOC under the SDA during the last financial year. Most were not from government agencies, but the public service is not immune from them.
These complaints often raise issues under several separate provisions of the SDA, usually under the provisions which make unlawful either direct discrimination on the ground of family responsibility, or indirect discrimination on the grounds of pregnancy or sex.
The concept underlying direct discrimination is that of formal equality which requires that everyone be treated equally. Thus it is necessary to compare the situation of the complainant with other people in similar circumstances. Discrimination occurs if the complainant has been treated less favourably than the comparator on the ground of the prescribed characteristic. Direct discrimination on the basis of family responsibilities is limited by the SDA to termination of employment(21), but the courts have held that this extends to constructive dismissal. Constructive dismissal takes place when an employee leaves because the employer's conduct is inconsistent with the terms of engagement or the duty of good faith that rests on all employers.
One case that was dealt with in the Federal Magistrates Court last year concerned the National Crime Authority.(22) The applicant in this case was employed on a contract as an intelligence analyst by the NCA. As a single parent with a toddler, she drew on a considerable credit of unused holiday leave when her child's health required her from time to time to take whole days off work.
The applicant's manager expressed his dissatisfaction about her absences, including by giving her a low performance assessment and saying to her that if he had known she had a sick child and could take time off, he would not have engaged her. Fearing that her contract would not be renewed, the applicant left the NCA before her contract ended.
Federal Magistrate Raphael was critical of the manager's poor handling of the situation, particularly his personal objection to the concept of 'carer's leave', which he regarded as a sort of 'special case'.(23) His Honour found that this, coupled with the manager's failure to accept that the applicant was entitled to take time off in accordance with her contract, resulted in the applicant's constructive dismissal by reason of family responsibilities and awarded the complainant damages totalling $54,488.57.
This case undoubtedly sends a strong message to employers who badger staff and seek to constrain their ability to fulfil their family responsibilities.
Given that the demands on care givers are not expected to ease in the foreseeable future, it is fair to expect that requests for more flexible working arrangements will continue, and staff will seek to make use of leave entitlements for this purpose.
Pregnancy related discrimination
Complaints of discrimination related to child-care responsibilities are also commonly based on the SDA provisions relating to indirect discrimination on the grounds of pregnancy or sex. The concept underlying indirect discrimination is that of substantive equality. It recognises that not all people will be in the same situation and that requirements that apply equally to everyone may in their operation impact more heavily on some people than on others. Indirect discrimination occurs in an employment situation where an employer unreasonably imposes a condition, requirement or practice that is likely to disadvantage someone with one of the prescribed characteristics - relevantly, being pregnant or a woman.
A common scenario would be:
- a female employee seeks to return to work from maternity leave on a part-time basis;
- that request is denied by the employer, who thereby imposes a condition or requirement to work full time; and
- the woman's employment is subsequently terminated or she feels compelled to leave.
In these circumstances the courts have held that such a condition or requirement is likely to disadvantage women more than men because in our present society the burden of childcare falls disproportionately on woman.
Central therefore to this type of case is whether the requirement to work full time is reasonable in all the circumstances. On this question, the onus of proof is on the employer to establish reasonableness having regard to the nature and extent of the disadvantage the employee will suffer from the requirement, the feasibility of the employer overcoming that disadvantage, and the requirements of the workplace.(24)
I stress that the Courts have not imposed a requirement that employers provide part-time work on demand, but that they make a reasonable attempt to accommodate such requests for more flexible working arrangements from women returning from maternity leave,(25) especially where the option of part-time work is available to other employees in the organisation.
In the case of Mayer v Australian Nuclear Science and Technology Organisation (ANSTO),(26) the applicant, Ms Mayer, occupied a professional position as a Business Development Manager with the agency. Following her pregnancy, she sought to return to part-time work.
Federal Magistrate Driver found that the employer's refusal of the request was unreasonable, as there was evidence that part-time work was available for her. Whilst this work was 'different work to that which [she] had been doing, it was important work that the applicant was able to do and that needed to be done.'(27) Ms Mayer was awarded close to $40,000 damages.
However, His Honour found that the employer was not unreasonable in refusing the applicant's proposal for job-sharing or for working permanently from home on the grounds that Ms Mayer's position required 'both a consistency of approach and regular interaction with other staff', and it was clear from her own evidence that 'she would not have been able to work full-time from home while caring for her child.'(28)
As I commented earlier there is no absolute or inflexible requirement for an employer to meet a request for part-time work from an employee returning from maternity leave. Every case will depend on its facts. However the case law so far indicates that the Courts at the least require employers to listen to, and understand, the reasons for a request for part time work for child-care reasons, and to make a realistic and genuine effort to explore the possibility of meeting the request.
To assist employers in both the public and private sector about their legal rights and responsibilities in relation to discrimination issues in the workplace HREOC has produced a range of materials. All of these are on our website. I would like to mention a couple that are pertinent to the cases I have mentioned today, and encourage you to look at them at your convenience.
HREOC Pregnancy Guidelines, which were released following the Commission's Report of the National Inquiry into Pregnancy and Work, Pregnant and Productive: It's a right not a privilege to work while pregnant, in 2001.
In developing the Guidelines, HREOC consulted extensively with both employers and unions. We designed them to provide practical guidance for employers, employer organisations, unions and employees on the management of pregnancy in the workplace, including recruitment, employment and dismissal. The Guidelines also address the overlap between discrimination, and industrial and occupational health and safety obligations to help people better understand and adhere to the existing frameworks.
Sexual Harassment in the Workplace: A Code of Practice for Employers which was released earlier this year to update the pre-existing code. The revised Code clearly explains what constitutes sexual harassment, how employers can be liable, and how they can avoid liability by developing effective workplace policies to prevent sexual harassment.
In addition to these existing materials, next week HREOC will be launching a comprehensive pack of resources for employers which is entitled Good Practice, Good Business. As the title suggests, our clear message to all employers is that putting effective anti-discrimination and anti-harassment strategies in place in the workplace is good for business.
This is the first time that HREOC has developed one resource package that contains a comprehensive guide for employees and employees about their rights and responsibilities under all of the federal anti-discrimination Acts, including the new Age Discrimination Act 2004 and problem of workplace bullying. We have received very positive feedback from various industry and employer groups and unions about the user-friendly nature of the resources, and we are confident that they will be useful resources to businesses big and small, public and private.
- This occurred in connection with the government's Bill, Sex Discrimination Amendment (Teaching Profession) Bill 2004, that was found by both HREOC and a Senate Committee of Inquiry to be ill-conceived, and was ultimately rejected by the Senate. The federal Government has recently reintroduced this Bill into the Lower House. HREOC in its submission to the Inquiry advised that the Government's amendments sought to undermine both the objectives and structure of the SDA, and could put Australia at risk of breaching international obligations it assumed under the International Covenant on the Elimination of All Forms of Discrimination Against Women. For further information refer to http://www.humanrights.gov.au/media_releases/2004/42_04.htm .
- For example, in 2004 HREOC released the results of a national Gallop poll which surveyed over 1,000 adults about sexual harassment in Australia. The survey found that 41 per cent of Australian women aged between 18 and 64 years and 14 per cent of men have experienced sexual harassment. Two-thirds of this sexual harassment occurs in the workplace, with 28 per cent of Australian women and seven per cent of Australian men having experienced sexual harassment at work. Over half of the sexual harassment experienced in the workplace involved physical forms of sexually harassing conduct, including unwelcome touching, hugging, cornering, kissing or unnecessary familiarity. However, non-physical types of sexual harassment were most frequently experienced, such as suggestive comments or jokes, staring or leering, sexually explicit emails or SMS messages, and sexually explicit pictures or posters. See http://www.humanrights.gov.au/sex_discrimination/challenge_continues/da…
- The relationship between sexual harassment and discrimination on the ground of sex has been the subject of significant judicial consideration. Case law in this area has led it being generally accepted that sexual harassment is a form of sex discrimination. Refer to Human Rights and Equal Opportunity Commission Federal Discrimination Law 2004, HREOC March 2004, p.82-84.
- Human Rights and Equal Opportunity Commission, Annual Report 2003-04, Human Rights and Equal Opportunity Commission 2004, p.76.
- Ibid, p.59.
- In 2003-04, 43% of complaints to HREOC were lodged under the Disability Discrimination Act, 32% under the Sex Discrimination Act, 14 percent under the Racial Discrimination Act, and 11% under the Human Rights and Equal Opportunity Commission Act. See Human Rights and Equal Opportunity Commission, Annual Report 2003-04, Human Rights and Equal Opportunity Commission 2004, p.70.
- See http://www.humanrights.gov.au/sex_discrimination/sexual_harrassment/gui… and http://www.apsc.gov.au/publications01/harassment.htm
- Article 4 of the APS Code of Conduct.
- Article 11 of the APS Code of Conduct.
- Refer to Australian Public Service Commission, Embedding the APS Values: Executive Summary, p.3 of 4, at http://www.apsc.gov.au/values/executivesummary.htm
- Australian Public Service Commission, APS Values and Code of Conduct in Practice, at http://www.apsc.gov.au/values/conductguidelines3.htm
- Ibid, p.2.
- Human Rights and Equal Opportunity Commission, Annual Report 2003-04, Human Rights and Equal Opportunity Commission 2004, p.62.
- Ibid, p.3.
- Under s.33 of the Public Service Act 1999, non-SES employees are entitled to apply for review of actions that relate to their employment. Certain actions are not reviewable, and these are listed in Schedule 1 to the Public Service Regulations 1999.
- Human Rights and Equal Opportunity Commission Federal Discrimination Law 2004, HREOC March 2004, p.92-94.
- However, 'reasonableness' will be determined by the nature of the steps actually taken, not whether it was reasonable not to have taken steps in the first place. Driver FM in Johanson v Blackledge (2001) 163 FLR 58.
- Spender J in Aldridge v Booth (1988) 80 ALR 1.
- Driver FM in Johanson v Blackledge (2001) 163 FLR 58, 82 .
- Human Rights and Equal Opportunity Commission, Annual Report 2003-04, Human Rights and Equal Opportunity Commission 2004, pp.76-80.
- Section 14(3) of the SDA.
- Evans v National Crime Authority  FMCA 375.
- Ibid at .
- See Escobar v Rainbow Printing Pty Ltd (No.2)  FMCA 122  and s7B of the SDA.
- In Mayer v Australian Nuclear Science and Technology Organisation  FMCA 209 , Driver FM stated that '...women are more likely than men to require at least some periods of part-time work during their careers, and in particular a period of part-time work after maternity leave, in order to meet family responsibilities.'
- Mayer v Australian Nuclear Science and Technology Organisation  FMCA 209 .
-  FMCA 209, .
- Ibid .