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COVID-19 can’t be used to shut the door on discrimination law reforms (by Dr Dominique Allen)

6th May, 2020

This latest guest contribution on the Labour Law Down Under Blog is by Dr Dominique Allen – Senior Lecturer with the Labour, Equality and Human Rights Research Group (LEAH) at Monash University. Other guest contributions are invited from the academic community, especially on issues relating to the impact of COVID-19 on work, workers and the regulatory framework for employment relations. Email me at: anthony.forsyth@rmit.edu.au

Six weeks ago Australia hung up a virtual ‘closed’ sign to deal with the threat of Covid-19. We shut our borders, closed schools, universities, cafes and shops, and cancelled sporting events. But what about the business of governing and law reform? Have they been cancelled too? Prior to the shutdown, there was a lot of activity in the discrimination law space but not much has happened since.

Of course the government has had to respond to the crisis and prioritise new workplace reforms, like the JobKeeper scheme, but the worst of the crisis seems to be behind us now so it’s time to follow-up on some pre-crisis issues. There are two workplace issues on my radar – sexual harassment and religious discrimination.

Right before the shutdown the Sex Discrimination Commissioner, Kate Jenkins, released the findings from an extensive inquiry she conducted into the prevalence of sexual harassment in the workplace. The report shows that sexual harassment hasn’t gone away even though it has been unlawful for almost four decades, and it is costing the economy $3.8 billion per year, not to mention the unquantifiable emotional and psychological it costs the women subjected to it.

Commissioner Jenkins made 55 recommendations for improving the legal framework and changing the approach to one that prevents sexual harassment and addresses its causes, rather than one that responds individually and reactively. They include:

  • Broadening the Sex Discrimination Act to encompass a broader group of workplaces and workplace participants including paid and unpaid workers;
  • Requiring employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible;
  • Enabling the Australian Human Rights Commission to conduct inquiries into systemic sex discrimination and sexual harassment;
  • Allowing unions and representative groups to take sexual harassment claims to court on behalf of victims;
  • Including a ‘stop sexual harassment order’ in the Fair Work Act;
  • Amending the definition of ‘serious misconduct’ in the Fair Work Act to include sexual harassment; and
  • Clarifying that engaging in sexual harassment can be a valid reason for dismissal in the Fair Work Act.

The report has been tabled before Parliament and given to the Attorney-General. Admittedly, he’s only had it for two months and he will be trawling over it at a time of crisis so I’m not expecting a response tomorrow. But the findings in the report and its recommendations are too important for it to be left to gather dust on a shelf. The government needs to emerge from this crisis with a response.

The second issue on my radar is the Religious Discrimination Bill. Submissions on the second exposure draft closed at the end of January. This is a long overdue Bill to protect Australian workers from being discriminated against on the basis of their religion or because they are not religious.

In the most recent Census, 60% of Australians identified as having a religious affiliation with Christianity being the most common, followed by Islam and Buddhism. A growing number of Australians are identifying as having no religious affiliation. They all deserve protection.

Most state and territory anti-discrimination laws prohibit religious discrimination at work but this right has never been protected federally other than in the Fair Work Act (although as Israel Folau found, the s 351(2)(a) loophole means the Act’s protection varies depending upon your postcode: see (Anthony Forsyth’s post from last year on the Folau case).

The Religious Discrimination Bill 2019 prohibits direct and indirect discrimination on the basis of religious belief or activity in the workplace, as well as the manifestations of that belief, such as wearing a cross or a hijab. It also protects the rights of employees who do not hold a religious belief and do not to engage in religious activities. Employees who associate with a person who holds a religious belief or who engages in a religious activity are also protected. Partnerships, qualifying bodies, registered organisations and employment agencies are all covered.  

The Bill contains exceptions for employers that run a religious hospital or aged care facility which enable them to discriminate provided a person of the same religion would consider their behaviour to be in accordance with the doctrines, tenets, beliefs or teachings of that religion or in order to avoid injuring the religious susceptibilities of adherents of the religion. Not surprisingly, the exceptions and their application have been the most controversial aspect of the Bill. 

To be free from discrimination and persecution on the basis of one’s religion is a fundamental human right. The Attorney-General’s Department received almost 7,000 submissions to the latest draft Bill so it’s clearly an issue Australians feel strongly about and deserve a response.

As things ground to a halt, it is understandable that law reform slowed too as public servants responded to the legal ramifications of the actual crisis and they adjusted to working from home.

Now there are signs of life returning. The economy will start up again and we will emerge from isolation. When we do, we can’t be complacent and allow government to use the pandemic as an excuse for stalling on vital issues of law reform.

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