Reshaping Employment Discrimination Law: Towards Substantive Equality at Work?

Project Overview

Source of Funding
Australian Research Council (ARC) Discovery Grant

Funds received
$217,000

Duration
2011-ongoing

Project Summary
The enactment of the Fair Work Act in 2009 unexpectedly introduced a seemingly broad prohibition on discrimination in employment into the industrial framework. This novel prohibition operates alongside
existing anti-discrimination laws, such as the Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth), and State and Territory anti-discrimination statutes. These have quite separate conceptual foundations, and their effectiveness in promoting equality at work has been limited. This project examines the effect of the new industrial provisions, and the interaction of the overall system of employment discrimination laws in both providing legal redress for discriminatory harms at work in Australia, and in contributing to systemic change towards equality in relations at work.

On this website you will find more detail about the scope and aims of the project, the people involved, as well as links to useful resources. Your input is welcome. We would be happy for you to contact us with your comments about the project. We also encourage you to share any relevant resources on this subject on our useful links page.

Chief Investigators

The Chief Investigators for this project are:

• Associate Professor Beth Gaze
• Associate Professor Anna Chapman

The Research Fellow for this project is Ms Adriana Orifici and the Research Assistant for this project is Ms Kathleen Love.

About the Project

Aims of the Project

The aim of this project is to evaluate the extent to which Australian employment discrimination law protects a substantive version of equality at work that provides effective protection for members of marginalized groups. This would go beyond simply requiring the removal of barriers or burdens from the workplace, to considering the substantive impact of the law in contributing to the elimination of workforce practices that support existing forms of disadvantage. The overall objective of the project is to improve the law.

Background

In Australia, industrial relations laws and anti-discrimination laws have had separate conceptual foundations, and continue to be enforced through different institutions. The effectiveness of anti-discrimination laws in promoting equality at work through a prohibition of discrimination on attributes such as sex, race, and disability has been questionable due to under-resourcing of agencies leading to slow processes, technicality of the law and its interpretation, and limited access to legal aid assistance for complainants.

The Fair Work Act 2009 (Cth) introduced, in 2009, a 'discrimination-like' broad protection into industrial relations laws for the first time in the form of the adverse action provisions, of which s 351 prohibits an employer taking adverse action against an employee or prospective employee 'because of' a list of attributes similar to those protected by anti-discrimination laws, including sex, race, and disability among other categories. These new provisions hold out the promise of a more effective law and procedure to address employment discrimination. This project investigates the impact of the new adverse action provisions to determine in what ways the overall system of employment discrimination law has been reshaped, and whether this is furthering substantive equality at work.

Framework of Investigation

This project analyses the development of the reshaped employment discrimination system involving two strands (industrial and discrimination law), to assess the extent to which it contributes to improving protection for equality in the workplace. Achieving improved equality needs both more effective enforcement of existing legal avenues against discrimination, and broader understanding and acceptance of a more substantive approach to equality. The project's assessment will draw on legal and empirical research into the overall reshaped field of employment discrimination law: the adverse action provisions, enacted with the Fair Work Act 2009 (Cth), the existing State, Territory and Commonwealth anti-discrimination law systems, and the interactions between them.

Legal and Empirical Research

The central legal research of the project involves monitoring the development of tribunal and court interpretations in both strands of the system (discrimination law and adverse action). This will enable a mapping of the combined system as it develops. Theoretical materials will be used to provide a basis for evaluating the development of the law in the expanded system. The project will look for indications of interactions or cross-fertilisation of ideas and approaches, or clashes, between the two strands, and the effects of the new adverse action provisions on discrimination law systems. This analysis will inform an understanding of the strengths and weaknesses of different regulatory approaches to providing redress for discrimination in the work context.

The main empirical component of the project will be a study of experiences of claimants and respondents in employment discrimination matters, whether under State, Territory or Commonwealth discrimination law, or under the new adverse action provisions in the Fair Work Act 2009 (Cth). This will provide an exploratory qualitative profile of party motivations, understandings and experiences in bringing or defending a claim. This study will be supplemented by interviews with lawyers and other advisers, and staff of the agencies involved in the system, about their experiences in, and opinions of, the new system. This research will be used as a further source of data to check that our understandings of the system's operation based on legal analysis are accurate. It will enable us to make a more accurate assessment of whether the expanded system better protects individuals from discrimination, not only in reported cases, but also in cases that are never publicly litigated. This work will enable an identification of the factors and processes in a claimant's decision to choose one avenue, jurisdiction or remedy over another, thereby assessing whether the hypotheses in the discrimination literature about the factors that influence parties are accurate. It will contribute to a better understanding of how parties experience civil legal process in general, including the experiences of unrepresented litigants in the legal process.

Communication of Results

There are three main audiences for this project's results: stakeholders (employers and workers); policy makers and regulatroy agencies; and scholars and researchers. Results will be communicated directly to these three groups through public seminars, workshops, conference presentations and journal articles.

Useful Links

• Fair Work Commission
• Australian Human Rights Commission
• Victorian Equal Opportunity and Human Rights Commission
• Anti Discrimination Board of New South Wales
• Anti Discrimination Commission of Queensland

Publications

Journal Articles

Submitted: Chapman, A. & Love, K., 'Trade union victimisation and freedom of association: developments in the reverse onus of proof'.

2016

• A Orifici, 'Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd: When is it permissible to take detrimental action against an employee who exercises a legal right to take leave?' 2 (2016) International Labour Rights Case Law 383-388
• A Chapman, ‘Reasonable Adjustment in Australia: Displacing the Normative Worker?’ Bulletin of Comparative Labour Relations (forthcoming April/May 2016)

2015

• Chapman, A., 'Judicial Method and the Interpretation of Industrial Discrimination' (2015) 28 Australian Journal of Labour Law 1

2014

• Chapman, A., Gaze. B. and Love, K.,'The reverse onus of proof then and now: the Barclay case and the history of the Fair Work Act's union victimisation and freedom of association provisions' (2014) 37 University of NSW Law Journal 471-506

2013

• Chapman, A. and Gaze, B., 'The Human Right to Non-discrimination as a Legitimate Part of Workplace Law: towards Substantive Equality at Work in Australia?' (2013) 29(4) International Journal of Comparative Labour Law and Industrial Relations 355
• Gaze, B., 'Fair Work Ombudsman's regulatory powers: the use of enforceable undertakings' (2013) 20 Aust J of Administrative Law 180

Book Chapters

2015

• A Chapman, ‘Freedom from Discrimination and Harassment’ in C Ozich (ed), Employment Rights Now (Hardie Grant Books, 2015) 33-41

Conference & Seminar Papers

2015

• A Chapman, ‘General Protections, Discrimination and the Industrial Context’, Australian Labour Law Association NSW Chapter, Sydney, November 2015
• Chapman, A. and Gaze, B., 'The Industrial System, Discrimination and Judicial Method: The Australian Reluctance' Labour Law Research Network Conference Amsterdam June 2015
• Chapman, A. and Gaze, B., 'The Industrial System, Discrimination and Judicial Method: The Australian Reluctance' Fair Work Commission Lecture, University of Melbourne Law School, 29 May 2015

2014

• Chapman, A., Gaze, B. and Orifici, A., 'Adverse Action and Discrimination: Case Developments and Preliminary Empirical Findings' Australian Labour Law Association Biennial Conference Manly, 15-16 November 2014
• Gaze, B., 'Employment discrimination law: human rights law or labour law? Does it matter?' Third Annual International Conference of the Berkeley Comparative Anti-Discrimination Law Study Group, Brussels, Belgium 5-6 May 2014
• Chapman, A. and Gaze, B., 'Are the Adverse Action Provisions in the Fair Work Act Providing Adequate Protection?' 28th Association of Industrial Relations Academics Australia and New Zealand (AIRAANZ) Annual Conference, February 2014, Melbourne

2013

• Chapman, A. and Gaze, B., 'Bringing the human right to non-discrimination into workplace law: towards substantive equality at work in Australia?' Labour Law Research Network Inaugural Conference (UPF, Barcelona, June 2013)
• Chapman, A., Gaze, B. and Love, K., ''But Why?' 'Just Because!': The Causal Link between Adverse Action and Prescribed Grounds under the Fair Work Act' refereed conference paper, 27th Association of Industrial Relations Academics Australia and New Zealand (AIRAANZ) Annual Conference, 6-8 February 2013, Fremantle (10 pages).
• Gaze, B., 'Human rights in employment law: integrating anti-discrimination in Australian workplace law,' International Law and Society Associations Meeting, Hawaii June 2012 (10 pages).
• Chapman, A., Gaze, B. and Love, K., 'Adverse Action, Discrimination and the Reverse Onus of Proof: Exploring the Developing Jurisprudence' Australian Labor Law Association Biennial Conference, Canberra, Nov 2012.

Submissions

• Submission to the Federal Court of Australia Consultation on Draft Practice Notes, December 2015.
• Submission on Draft Benchbook on General Protections to the Fair Work Commission, 23 December 2013.
• Response to the Draft Report of Productivity Commission (See Section 3), September 2015.
• Submission to the Interim Report of the Australian Law Reform Commission Inquiry into Traditional Rights and Freedoms Encroachments by Commonwealth Laws, September 2015.

Lecture to the Fair Work Commission

• Chapman, A. and Gaze, B., The industrial system, discrimination and judicial method: the Australian reluctance, Melbourne, 29 May 2015
  Lecture recording and slides are available here.

Working Paper

• Love, K., 'Union Victimisation, The Reverse Onus And The Causal Link: The Development Of Principles Prior To The Fair Work Act' CELRL Working Paper No. 52, Nov 2014

Other publications

• Orifici, A., 'Fly-In Fly-Out Workers Entitled to Accommodation while on Strike: Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd' in Opinions on High (16 December 2013).

Contact Us

We would be happy to receive your comments on the Project, Reshaping Employment Discrimination Law: Towards Substantive Equality at Work? or on our website.