Anti-Discrimination Board of Nswannual Report 2014-15

Anti-Discrimination Board of NSWannual report 2014-15

The Hon Gabrielle Upton MP
Attorney General
52 Martin Place
Sydney NSW 2000

Dear Attorney,

In accordance with section 122 of the Anti-Discrimination Act 1977 (NSW), the Anti-Discrimination Board of NSW presents its Annual Report covering the period 1 July 2014 to 30 June 2015.

Yours sincerely

Stepan Kerkyasharian AO
President

Contents (first level headings)

Highlights

President’s report

About the Anti-Discrimination Board

Anti-discrimination law in NSW

Statutory Board

Enquiry service

Conciliation service

Education service

Current publications

Aboriginal and Torres Strait Islander service

Legal Officer

Exemptions granted 2014-15

Liaison and support

Service reports

Financial statement

Structure of the Board

Copyright2015 State of New South Wales

You may copy, distribute, display, download and otherwise freely deal with this work for personal, educational or government purposes, provided that you attribute the Anti-Discrimination Board of NSW as the owner. However, you must obtain permission if you wish to (a) charge others for access to the work (other than at cost), (b) include the work in advertising or a product for sale, or (c) modify the work. ISBN 978-0-9750693-5-6. Produced October 2015.

Highlights

• Set up three new consultation councils to discuss issues of concern, including multicultural, business and State Government.
• Answered 3,881 enquiries about discrimination issues from the general public and from employers and service providers.
• Worked with Department of Justice to migrate website to new content management system with new features and improved searching.
• Developed new ways of reaching stakeholders with launch of social media presence including Facebook, Twitter and LinkedIn.
• Linked with other agencies to provide consumer information sessions for Aboriginal and Torres Strait Islander people.
• Received 1,058 complaints and finalised 1,217 complaints, with
  an average finalisation time of
  6.2 months.
• Provided information about anti-discrimination law at a range of community events.
• Provided advice on 19 applications for exemption from the Anti-Discrimination Act 1977 (NSW).
• Delivered 259 in-house training sessions and ran 16 seminars, with a total of 4,061 participants.

President’sreport

In 2014-15 the Anti-Discrimination Board of NSW continued its enquiry, complaint handling and education activities, which reflect our statutory functions to receive and resolve complaints and to inform people about their rights and responsibilities under anti-discrimination law.

This year the Board has embarked on several new initiatives to increase engagement with our stakeholders and awareness about our role. The first of these was an expansion of our consultation program.

The Board already had three community consultation groups – Aboriginal and Torres Strait Islander; Gay, Lesbian and Bisexual; and Sex and Gender Diversity. In 2014-15 we set up three more – Multicultural; Industry; and State Government. The new groups each met for an initial session this year and we are confident that further meetings in 2015-16 will result in increasing dialogue and developments that will enhance the Board’s relationship with the community.

The second initiative was a move into social media, with the launch of a Facebook page and Twitter account, as well as a page on LinkedIn. This provides an opportunity to communicate in a different way, extend our reach and meet current stakeholder expectations for receiving information. This has already enabled us to develop our networks and we look forward to an even better response as the number of followers increases.

There was also another upgrade to our website in June 2015 when the Department of Justice moved to the Sharepoint content management system (CMS). Communications staff had recently done a major restructure and content review of the site during a previous change of CMS, so this time the migration could be performed with only minor alterations.

The new system will have a unified look for all sections of the Department. The site also has a number of improved features including better searching, drop-down mega-menus, carousels and quick access to popular content. We will continue to improve the site and use our e-newsletter Equal Time, and our social media outlets to direct people towards it.

Our Enquiry Service continues to assist people who can’t find what they are after on our website. This may be because they do not use the internet, or they need a verbal explanation or they have a complex issue that requires a more personal assessment. The Enquiry Service also gives employers and service providers information on anti-discrimination law and options for preventing discrimination and harassment in their organisation, referring them on to our training and consultancy service if they need more in-depth assistance.

Discrimination complaint numbers have remained stable this year, with 1058 complaints received. As previously, disability discrimination, race discrimination and victimisation were the most frequent grounds of complaint.

The relatively high number of victimisation complaints, with the vast majority in the area of employment, suggests that employers may need further education about the right of employees to make a complaint without fear of further unfair treatment for doing so.

The conciliation team continues to achieve excellent results, with 1,217 complaints finalised in 2014-15. The team took an average of 6.2 months taken to finalise complaints, and 89% were finalised within 12 months. Resolving complaints through conciliation requires sophisticated negotiation skills and the Board is fortunate to have such an experienced team.

In 2014-15 the Board’s Education Service continued its training program for employers and service providers. The team delivered 259 on-site training sessions and ran 16 seminars to reach a total of 4,061 participants. Our training team have an excellent reputation and receive frequent repeat business and continual positive feedback.

This training is done on a fee-for-service basis and provides income to offset the expense involved. The total income for 2014-15, including sale of publications, was $366,658. However there are a number of factors affecting our ability to maintain and increase this figure. Expenditure on training is discretionary and is affected by economic conditions which limit our capacity for marketing and innovation in a very competitive environment.

As well as the ongoing task of managing our new social media presence and website, the Board’s two part-time communications staff have assisted with a number of press releases, produced several issues of our e-newsletter, and worked on other training and information materials as required.

Our Aboriginal and Torres Strait Islander team also continued its activities in 2014-15. The team worked with other agencies to provide joint information sessions for community workers and leaders, provided training for real estate agents and attended a number of fairs and information days. They also worked towards a memorandum of understanding with the NSW Office of Fair Trading which was signed in September 2015.

Our two part-time Legal Officers continue to advise the statutory Board members on applications for exemptions from the ADA, as well as dealing with other legal matters. We continue to receive significant numbers of these applications, and some raise complex legal issues, so I am very appreciative of their assistance and expertise.

All this work has been achieved in a context of considerable pressure on the Board’s budget and resources. As previously, due to budget constraints there has been a significant impact on our ability to deliver on our statutory functions to conduct inquiries, review legislation and develop human rights policies and programs.

My thanks go to all the Board’s staff, particularly to Elizabeth Wing, the Conciliators, Enquiry Officers, Educators and the Liaison and Support team who facilitate the core work of the Board. Thanks also to the statutory Board members, and to the members of our all consultation councils who provide such valuable input on issues of concern in the community.

Stepan Kerkyasharian AO

President

Anti-Discrimination Board of NSW

Photo captions
1. The Board’s stall at the Yabun Festival in January 2015.
2. Senior Workplace Relations Consultant Rhonda Stewart-Crisanti (front, far right) provided training for Contact Officers at Northparkes Mines near Parkes.

About the Anti-Discrimination Board

The Anti-Discrimination Board is an independent statutory body which was set up under the Anti-Discrimination Act 1977 (NSW) to administer that Act. The Board’s role is to promote anti-discrimination and EEO (equal employment opportunity) principles and policies throughout NSW. We are a business centre within the NSW Department of Justice.

Functions of the Board

The Anti-Discrimination Board currently performs three main roles.

1. We work to prevent discrimination from occurring. We inform people about their rights and responsibilities under anti-discrimination law, and explain how they can prevent and address discrimination. We do this through consultations, education programs, seminars, talks, participating in community functions, publications and our website.

2. We handle discrimination complaints. We provide an enquiry service for people who want information about their rights or responsibilities under anti-discrimination law. We investigate discrimination complaints and conciliate complaints when appropriate.

3. We advise the Government on discrimination issues, and make recommendations to the President of the Anti-Discrimination Board and the Attorney General about applications for exemption from the Anti-Discrimination Act.

The President and the Board

Stepan Kerkyasharian AO became the President of the Anti-Discrimination Board on 15 September 2003.

The Board consists of the President as Chair, plus four members appointed by the Governor of NSW. The members in 2014-15 were William Seung, Eman Sharobeem and Peter Wertheim. The fourth position was vacant during the year.

See page below for more information about the Board members.

The Board’s structure

The Board had two branches:

•Enquiries and Conciliation Branch - Responsible for handling initial enquiries about discrimination, and for investigating and conciliating discrimination complaints received by the Board. The Manager in 2014-15 was Elizabeth Wing LLB, EMPA.

•Business Services Branch - The branch has two teams: Education Services, which provides training, community education, information, publication and website services; and Liaison and Support, which provides support services such as administration, logistics, financial control and information technology. The Manager in 2014-15 was Scott Hipwell BBus, FIPA,SA FIN.

The Board also has regional offices in Newcastle and Wollongong that provide services to Northern and Southern NSW. Regional Manager Gerardo de Liseo BA, DipEd, DipTESOL, DipLaw, GDipLegPrac, Cert Mediation is responsible for the enquiry and conciliation functions in these offices, and the education function is managed directly from Sydney.

The Board’s Aboriginal and Torres Strait Islander team includes complaint handling and education staff who provide culturally specific services for Aboriginal and Torres Strait Islanders. The Team Leader in 2014-15 was Felicity Huntington.

The Board also employs a Legal Officer who advises the President, Board and staff on legal matters.

Staff profile

At 30 June 2015, the Board had 34 staff (29.9 full time equivalent positions), of which 27 staff were based in Sydney and 7 in the two regional offices. At 30 June 2015 there were 14 employees (7.9 FTE) who worked part-time.

• Employment status: of the 34 employees at 30 June 2015, 30 (88%) were permanent employees and four (12%) were temporary.
• Tenure: 42% of staff have been with the Board for 15 or more years, 14% for 10-14 years, 19% for 5-9 years, 11% for 3-4 years, and 14% for less than 3 years.
• Gender: four staff were male (12%), and 30 were female (88%).
• Diversity: 29% of staff identify English as their second language, 7% identify as Aboriginal and Torres Strait Islanders, 29% are from culturally and linguistically diverse backgrounds, and 14% identify as having a disability.

Training and development

The Board encourages a high level of participation in training and development, in accordance with
the policy of the Department of Justice (DJ). All staff engaged in some form of training or development during the year. Training undertaken this year included:

• DJ human resources systems;
• preventing and managing grievances;
• disability awareness;
• bullying and harassment;
• managing unreasonable complainant conduct;
• dignity and respect;
• negotiation and conflict resolution;
• public interest disclosure obligations;
• legal seminars;
• Sharepoint content management system.

The Board also promotes expressions of interest from staff to act in temporary roles that provide opportunities for training and development.

Photo captions

1. L-R: Elizabeth Wing (Manager Enquiries and Conciliation); Scott Hipwell (Manager Business Services), Felicity Huntington (Aboriginal and Torres Strait Islander Team Leader), Gerardo de Liseo (Manager Regional Services).

2. Anti-Discrimination Board staff at a farewell in 2015.

Anti-discrimination law in NSW

Discrimination occurs when a person with a particular personal characteristic is treated less favourably than a person who does not have that characteristic, or they are harassed because of that characteristic. The Anti-Discrimination Act 1977 (NSW) (ADA) makes it unlawful to discriminate on certain grounds, in certain circumstances.

Grounds of discrimination

Discrimination and harassment based on any of the following characteristics is unlawful in NSW:

• sex (includes pregnancy, childbirth and breastfeeding);
• race;
• age (includes compulsory retirement);
• marital or domestic status;
• homosexuality;
• disability (includes physical, intellectual and psychiatric disabilities, learning and emotional disorders and infectious diseases);
• transgender status;
• carer’s responsibilities.

It is also against the law to discriminate against or harass someone because their relatives, friends or associates have any of these characteristics (except for carer’s responsibilities), or because you think they are homosexual, transgender or have a disability, even if it isn’t the case. Sexual harassment is also against the law.

Areas of discrimination

These types of discrimination are unlawful in five main areas:

• employment;
• provision of goods and services;
• state education, including schools, TAFEs and universities (sexual harassment and race discrimination are also unlawful in private education)
• the provision of accommodation;
• registered clubs (any club that sells alcohol or has gaming machines).

Carer’s responsibilities discrimination is only against the law in employment.

Direct and indirect discrimination

Both direct and indirect discrimination are against the law. Direct discrimination occurs when someone is treated unfairly compared to someone else in similar circumstances – for example, refusing to hire a person because they have a disability.

Indirect discrimination occurs when there is a requirement which has a disproportionately negative impact on a particular group of people, and the condition is not reasonable in the circumstances, and the person concerned cannot comply with it. For example, requiring a person over a certain height for a job may

discriminate against women and some ethnic groups.

Vilification

Vilification because of a person’s race, homosexuality, HIV/AIDS or transgender status is also unlawful. The ADA defines vilification as any public act that incites others to hate, have serious contempt for, or
severely ridicule a person or group of people who have the relevant characteristic.

Victimisation

It is unlawful to victimise a person because they have complained about discrimination or helped someone with a discrimination complaint. A victimisation complaint may be upheld even if the original discrimination complaint is not.

Other unlawful acts

It is unlawful to publish an advertisement that breaches the ADA, and to aid and abet a breach of the ADA. In some circumstances employers may be liable for the conduct of their employees.

Exceptions and exemptions

The ADA includes some specific exceptions where jobs and services can be targeted towards a particular group. These mainly relate to reasonable requirements for particular types of jobs, services aimed at the special needs of a particular race or age group, and some special categories such as sport and superannuation.

The President of the Board and the Attorney General can also grant exemptions from the ADA to permit discrimination in certain circumstances. For more information about exemptions, see pages 26-27.

Making a complaint

If a person thinks they have been discriminated against or harassed, they should contact the Board’s enquiry service to find out whether their situation is covered by the ADA. If it is not covered, our Enquiry Officers will suggest other avenues to find help.

If the problem appears to be covered by the ADA, the person can lodge a complaint. The Board handles all complaints impartially, confidentially and free of charge, and there is no need for a lawyer.

A person can complain on their own behalf, or in certain circumstances, through a representative, guardian or agent. People can also complain as a group, or as a representative of a group.

Making a complaint involves completing a complaint form, or writing to the President of the Board by post or email. Complaints can be written in any language, or in Braille.

If the events in the complaint are clearly not covered by the ADA, the complaint may be declined at this point. This may also happen where the events are more than a year old, depending on the circumstances of the delay.

Complaints that are accepted are then investigated more thoroughly to see if they may involve a breach of anti-discrimination law, which may be quite involved. Some complaints are resolved during this process.

Conciliation

If after investigation the complaint appears to involve a breach of anti-discrimination law, and it has not yet been resolved, the Board helps to conciliate the complaint. This means we assist the parties to the complaint to come to an agreement or settlement that will resolve it.

The parties to the complaint are known as the complainant (the person alleging that they have been discriminated against or harassed) and the respondent (the person allegedly responsible for the discrimination or harassment).