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Issue 266, October 25, 2006
The independent newsletter on equal opportunity and workforce diversity

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In this issue

Overhaul of SA laws

Compo order despite lewd behaviour

Mixed cmn findings on code breaches

Tolerance ‘good for the bottomline’

Push for ‘carer-friendly’ practices

Almost half of workers believe they are victims of job discrimination

HREOC welcomes new phone code

Round one to doctor in age discrimination battle

Race, religion, disability and politics not factors in student’s poor showing

VCAT orders limit costs despite $20,000 compo to ‘deaf’ student

Final days of same-sex inquiry

Survey shows surge in access to paid maternity leave

Libs in same-sex reform talks

Scully in damage control over Cronulla race riots report


 

Overhaul of SA laws

SA discrimination laws will be overhauled for the first time in 20 years next month with the introduction of the Equal Opportunity (Miscellaneous) Amendment Bill. Minister for the Status of Women Jennifer Rankin said the new bill will, among other things, see nursing mothers protected from discrimination as they breast or bottle feed their child at work, education institutions & in public. Women seeking employment will be protected against discrimination on the basis of potential pregnancy, not only actual pregnancy. It will be illegal to discriminate against people on the grounds of religious appearance or dress, including people wearing a crucifix, a hijab or a kippa in schools, unis and their workplace. Victimisation of a person on the grounds of their sex, sexuality, marital status, pregnancy, religious appearance or dress, and caring responsibilities will be unlawful under the Act. Rankin said the govt was also legislating so a person cannot be refused lodging on the grounds they intend to keep a therapeutic animal ie, a pet certified by doctors to help with a disability. 

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Compo order despite lewd behaviour

The VCAT has ordered a management services company to pay a court security officer $6,000 for sexual harassment, despite finding she contributed to a workplace environment of “unfettered smut”. Snr Member Noreen Megay said it was difficult to ascertain whether any of the parties thought there was a line “that should not be crossed”. But she said the evidence suggested the woman had been grabbed by her ears and pulled towards a co-worker’s groin, and touched on the breast – both against her will. “From my observation of Ms Ward, a reasonable person might not conclude that such conduct would humiliate or intimidate her but such a person would, or should have anticipated she would be offended by it,” SM Megay said. She ordered Australian Integration Management Services Corporation (AIMS) to pay Ward $5,000 for sex harassment under s102 of the EOA Act 1995 and a further $1,000 under s14 of the Act because it failed to keep her away from her alleged assailant. AIMS said it continued to employ both workers despite the alleged incidents. Witnesses earlier confirmed the incidents had taken place. But other witnesses said the woman was a willing participant in “workplace banter” about sexual matters. This included her offering to take one worker home and “make a man of him”, then making a “flashing movement” and pinching him on the bottom; rubbing her breasts against another male worker; and asking another worker if he was circumcised, “because she doesn’t like eating the crunchy bits”. A further incident involving a “bedsheets remark” was considered so vulgar by SM Megay she chose not to repeat it in the tribunal. SM Megay said she accepted the “overwhelming evidence” of other security officers that the woman’s own behaviour was “lewd, crude, sexually explicit and entirely inappropriate in the workplace”. But she said this did not detract from AIMS failure to address the two mentioned incidents — or remove the opportunities for the two to meet in the workplace. (Ward v AIMS Pty Ltd, VCAT 2045, 13/10/2006)

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Mixed cmn findings on code breaches

Sharply contrasting approaches taken by the Federal and state IRCs to breaches of workplace codes of conduct by workers with long service records have been revealed in two matters before the bench this month. On Oct 19, a full bench of the AIRC overturned a decision to reinstate a 27-year veteran worker sacked for accessing pornographic and violent images at work (see DA Breaking News). The bench said employers were “entitled to take a firmer line” than Cmr Ken Bacon’s recommendation that the worker be reinstated, but without backpay. In the NSW IRC, DP John Grayson ordered reinstatement of a 23-year veteran worker sacked following allegations of sexual harassment . In the full bench decision, Pres Justice Geoffrey Giudice, SDP Anne Harrison and Cmr Len Hingley said there was no reason for the cmn to interfere in the employer’s decision to terminate. It said Cmr Bacon had taken into account the worker’s 27 years’ unblemished service, as well as his own subjective view about the offensiveness of the images, in ruling the termination was harsh. But the bench said Qld Rail had taken various steps to ensure employees were acquainted with its policies and the worker had “flagrantly” transgressed them afterwards. “The cmr’s approach might well be interpreted to mean that employees with long service out to be immune from termination of employment unless guilty of breaches of the policy involving large amounts of hard core pornography,” the bench said. “While appreciating that loss of enjoyment is a bitter blow, we see no proper basis on which the cmn might properly intervene to reverse the employer’s decision in this case.” In a sharply contrasting approaching, SDP Grayson of the NSW IRC held the dismissal of Manly Local Court deputy registrar Bradley Robert Miller by the NSW Attorney-Gen’s Dept for breaches of a code of conduct and its harassment prevention policy was harsh and unreasonable. The NSW Director General claimed among other things Miller touched a female worker on the backside while at a local pub and told her “I just want to have sex with you”. The Director General accepted Miller was influenced by the “drinking culture” at the court – but said he lacked understanding of the boundaries between personal and professional conduct.  Ordering the worker be reinstated, DP Grayson held the dept failed to make out allegations against Miller, but stressed his behaviour was inappropriate. “The blame for any souring of personal relationships and/or disharmony in the workplace should not be laid soley at the sapplicant’s door.” (Qld Rail v Wake. PR974391. 19/10/06; Miller v NSW AG Dept, NSWIRComm 322, 13/10/06)

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Tolerance ‘good for the bottomline’

Australia is being urged to follow the path of Canada in promoting the business benefits of tolerance to help combat a claimed rise in witnessed incidents of workplace racism. The Talent 2 survey claims 16% of Australian employees have witnessed racism at work, up from 9% last year. Tas had the highest alleged incidence of witnessed racism at 20%, followed by Qld (16.6%), NSW (16.1%), WA (15.2%), SA (15%), Vic (14.1%) and the ACT (7.1%). Respondents claimed Muslims, people of Middle-Eastern appearance, Asians, and Indigenous Australians bore the brunt of the witnessed racism incidents. More people believe there is racism in the workplace (34%) than actually witness it. Talent2 director Peter George says the figures suggest Australia may need to follow the path of Canada by backing up tough anti-discrimination laws with workplace education programs designed to show the economic benefits to business of improved tolerance. He said a 2003 Canadian study showed increasing the level of racial diversity and tolerance in the workplace enhanced innovation, international business dealings and corporate image. Last month, Attorney General Phillip Ruddock confirmed HREOC would be provided with more than $1m to reduce age bias by developing education and policy materials (DA 263).

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Push for ‘carer-friendly’ practices

More “carer-friendly” work practices are needed to help carers bridge the gap between paid work and the voluntary carer duties, a national launch has heard. Speaking at last week’s launch of Carers Week, Federal Sex Discrimination Cmr Pru Goward said 2.6 million carers in Australia provide unpaid help and assistance to family members, a relative or friend who could not otherwise manage because of disability, mental illness, chronic condition or frailty. Goward said if the care provided by carers in the home was replaced with services purchased from formal care providers, the cost would be more than $30 billion annually. “The pressures on people to care more, not less, are certainly emerging exactly at the same time as there is pressure on people to work more, not less,” Goward said. The theme for this year’s Carers Week, ‘Anyone, Anytime’, highlighted the fact nearly every worker at some time during their life would provide carer services to spouse,  parent, son, daughter, relative, neighbour or friend. Goward said there were 500,000 primary carers in Australia who provided the most care to aged people or those with disability. “All levels of government, the business community, and all areas of society need to consider adopting carer-friendly work practices and support the needs of carers.”

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Almost half of workers believe they are victims of job discrimination

Almost half of all Australians believe they have been discriminated against when applying for a job, with older workers facing the greatest prejudice, according to an international survey. The Kelly Services Global Index survey of 70,000 workers in 28 countries found 46% of respondents in Australia believed they experienced discrim when applying for a job in the past five years. However, levels of discrim were not adverse by world standards, with Australia ranked 16th on the list of 28 countries. Sweden, Thailand and Singapore recorded the highest levels of perceived discrimination. The major claimed sources of discrim in Australia were age (25%), gender (9%), race (9%) and disability (3%). Men experienced the highest level of discrim, with 50% saying they faced prejudice compared to 43% of women. Almost 48% of workers aged 45 or older felt they had been discriminated against on the basis of their age, while 26% of workers aged up to 24 believed they were victims of age discrimination. Industries experiencing the highest level of discrim were IT, engineering and retail. Only 12% of workers who claimed they experienced discrim took action, with only 4% satisfied with the outcome. Almost 2,000 workers were surveyed in Australia.

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HREOC welcomes new phone code

HREOC says a new code of practice will ensure workers with disabilities maximise their chances to use the telephone system. On Oct 18, the Australian Communications and Media Authority registered a code requiring manufacturers or importers of phones to advise telcos of features that will make the phones more accessible for people with disabilities. These included larger print on screens to buttons that vibrate or are easier to feel.

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Round one to doctor in age discrimination battle

A doctor’s request for an interim ruling preventing a Vic WorkCover agent “acting in a manner prejudicial to negotiation or conciliation” of his age discrimination claim was reasonable – and should not be subject to a costs order, the VCAT has ruled. Gallagher Bassett Services Workers Compensation (GBS) sought legal costs, claiming the application for an interim order “served no useful purpose” as the company was already legally bound to act in an “appropriate” manner. But DP Cate McKenzie said it was reasonable for the doctor to protect his reputation. “If GBS were to act in a way which influenced the Victorian WorkCover Authority to remove Dr Wallin’s name from its list of accredited specialists, this would detrimentally affect his bargaining position (relative to GBS) in conciliation or negotiations concerning his complaint,” DP McKenzie said. “He would then be negotiating from a position where he could not be reinstated to his former position with GBS, because he would not be an accredited Victorian WorkCover Authority specialist.” The doctor’s age discrimination claim, still to be heard, alleges GBS terminated his employment in circumstances “where he was better qualified and more experienced than those health management specialists whose employment was not terminated” — and “where those whose employment was not terminated were younger than him”. (Wallin v Gallagher Bassett Services Workers Compensation Vic, VCAT 2047, 13/10/06)

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Race, religion, disability and politics not factors in student’s poor showing

The Federal Court has tossed out a claim by a student who said RMIT’s failure to grant her a doctoral degree in education was based on her “race, disability, religion and politics”. Upholding an earlier decision by HREOC that the claim was manifestly inadequate, Justice Mark Weinberg said he could find no reason to grant the student, Stanislawa Bahonko, an extension in time in which to appeal that decision. Justice Weinberg said he was willing to accept she lodged it 11 days late due to ill health. But he said the case was so weak as to not to warrant the extension. Bahonko passed her course work at RMIT but failed her doctoral thesis, despite being invited to resubmit for a second attempt. Among other things, Bahonko complained a June 2006 letter sent by RMIT notifying her that her candidature for the doctoral degree had been terminated “was full of contradictions and lacking in reasons” and had the “fingerprint” of “moral perverts”. She said that over the previous two years she had been denied work as a teacher, refused interviews, and “treated with contempt”. “The actions that she described, assuming they occurred, and assuming that they were motivated by her race, Slav, or disability, which she characterised as ‘imputed’ personality disorder, might conceivably give rise to a claim of discrimination of a kind that could be brought before this court,” Justice Weinberg said.  “However, an applicant who seeks an extension of time must do more than merely set out a series of grievances, imagined or real. In that regard, argument by assertion is not sufficient.” Justice Weinberg said he lacked jurisdiction to hear claims by Bahonko she was discriminated against because of her religious and political beliefs. (Bahonko v Royal Melbourne Institute of Technology, FCA 1325, 11/10/06)

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VCAT orders limit costs despite $20,000 compo to ‘deaf’ student

The VCAT has ordered the Vic Dept of Education to pay only part of a hearing-impaired student’s legal costs, despite earlier awarding the student $20,000 compensation for being denied the same level of class participation as his hearing peers (DA# 257). DP Cate McKenzie found the discrimination limited Dylan Beasley’s participation in classes at Pearcedale Primary School, where he was provided with instructional communication in sign-supported English (SSE) and finger-spelling. Ordering the dept pay the student 80% of the costs involved in an earlier, unsuccessful strike out motion by the dept, DP McKenzie said the case for the strike out was “very weak and premature”. “They could not be determined until the full hearing, and in the light of evidence given there.” But DP McKenzie found the dept should pay only 7% of the costs for the full hearing as there was “nothing improper, unreasonable, vexatious or oppressive about the way in which the state conducted the proceeding”. “It did not unnecessarily prolong the case. The complainant was not substantially successful.” DP McKenzie said the ruling could result in the Beasley being effectively denied the fruits or benefits of a judgment – but “this factor does not change my award”, or the need for balance. (Beasley v Dept of Education and Training, VCAT 2044, 12/10/06)

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Final days of same-sex inquiry

Final hearing dates for HREOC’s national inquiry into discrimination against people in same-sex relationships are now available at www.hreoc.gov.au/samesex/hearings.html.

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Survey shows surge in access to paid maternity leave

Latest ABS figures suggest access to paid maternity leave is increasing for working women. The recent ABS Employee Earnings, Benefits and Trade Union Membership survey showed 41% of female employees were entitled to paid maternity leave in 2005, up from 31.8% in 2004. In addition, a survey undertaken by the Equal Opportunity for Women in the Workplace Agency (EOWA) showed 46% of organisations provided paid maternity leave in 2005, up from 36% in 2003.  Now, a separate ABS survey, Pregnancy and Work Transitions released on Oct 23, found 64% of women held a job during their pregnancy, and 34% of employed mothers-to-be took up the option of paid maternity leave. As at June 30, 2006, the Dept of Employment and Workplace Relations workplace agreement database showed 53% of women covered by federal collective agreements had an entitlement to paid maternity leave, subject to eligibility requirements. Ninety five per cent of employees covered by federal collective agreements had access to at least one family-friendly or flexible working hours provision. The Pregnancy and Work Transitions survey showed 82% of women returning to the workforce after the birth of a child were working in a part-time capacity. Twenty one per cent of women (28,000) who participated in the 2005 survey did not take unpaid maternity leave because they did not have access to it. But Workplace Relations Minister Kevin Andrews said that is about to change, with the introduction of the Australian Fair Pay and Conditions Standard ensuring that all eligible employees are now entitled to 52 weeks’ unpaid parental leave, including maternity and paternity leave, at the time of the birth of a child. 

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Libs in same-sex reform talks

A group of Lib MP’s said to be talking to John Howard about removing discrimination against same sex couples are believed to be making some ground (DA#265). While none of the four Libs — Warren Entsch, Malcolm Turnbull, Peter Lindsay and Greg Hunt— are publicly commenting at this stage, DA understands a meeting with Howard has occurred — and the Attorney-General’s dept is looking at areas that could be amended. The areas being considered are believed to include Medicare, super and other entitlements enjoyed by heterosexual couples. HREOC, meanwhile is nearing the end of its national inquiry into discrimination against same sex couples, with the final public comment session set down for Wentworth Falls in NSW on Nov 16. Sessions will also be held in the NT at Darwin on Nov 2 and Alice Springs on Nov 3. At the ACT session earlier this month, ACT Attorney General Simon Corbell confirmed his govt was amending civil union legislation disallowed by the Federal Govt earlier this year – and was likely to present the revised bill to parliament later this year. Meanwhile, High Court Justice Michael Kirby has spoken in favour of same-sex marriages in a speech honouring ex-Family Court judge Peter Nygh.

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Scully in damage control over Cronulla race riots report

Police Minister Carl Scully has repeated claims a report of police handling of the Cronulla race riot was a draft only, in the face of fresh claims the report was leaked to snr NSW police weeks before Scully told parliament it was not complete. The Australian this week reported that “affected police” attached to the Miranda local area command, which covers Cronulla, had copies of former assist cmr Norm Hazzard's report late last month. But a spokesperson for the Minister told DA the report was only ever a draft, and rejected claims Scully had admitted he was wrong to say the report was not finished. The draft report found police were ill-equipped to handle the riot.

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Stories appearing in Discrimination Alert Breaking News have been marked 
with BN.


 

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