EQUAL TIME AUGUST 2003
CONTENTS
From the new President
British case on compulsory ties
Researching discrimination law
Successful combined information forum at Penrith
Videos on bullying
Arabic/Islamic community education project
Legal developments
Conciliations
Traps for small businesses
Want to know how to find out more about anti-discrimination law? Consult our
easy guide on page 2
FROM THE NEW PRESIDENT
In September the NSW government appointed Stepan Kerkyasharian as the
new President of the Anti-Discrimination Board. He is currently the CEO and
Chair of the Community Relations Commission, and will continue in these
positions as well as becoming ADB President.
The Anti-Discrimination Board performs a very important function in terms of educating the people of NSW about their rights and responsibilities under NSW anti-discrimination law, and facilitating the use of that law to take formal action against discrimination, harassment, victimisation and vilification when this is appropriate.
I come to the Board at a difficult time, in terms of the structural changes that it is undergoing and also the lower level of tolerance seen in some areas of society. However, I am confident that the current situation provides an opportunity to focus on the best ways to provide our services within more limited resources.
In particular, I am very impressed by the level of professionalism and commitment displayed by the staff of the Board. They continue to perform at an extremely high standard and provide an excellent service both to individual members of the public and to the community of NSW. This service will continue while the challenges facing the Board are considered and strategies put in place to deal with them.
There are two immediate issues facing the Board. One is the process of handling
complaints – we need to get the lead time down significantly and get the role of the Board better understood so that people have realistic expectations when they approach it. The second is the need to reduce accommodation costs, as the rental bill for the Board’s current premises is very high.
I look forward to meeting the groups and individuals that are involved with the Board and discussing the ways in which our services can assist them.
Stepan Kerkysharian AM
RESEARCHING DISCRIMINATION LAW
There are numerous ways for community members to research discrimination and human rights issues. You may want to find out more about a particular ground of the Anti-Discrimination Act 1977 (ADA), or find out the difference between federal and state legislation, or find legal decisions which discuss a particular point of law.
There is detailed information about discrimination issues at the Anti-Discrimination Board’s website, located at http://www. lawlink.nsw.gov.au/adb. This includes factsheets on the individual grounds of the ADA such as racial discrimination or sexual harassment. You will also find our complaints form, information on how to lodge a complaint, what training courses are offered, as well as publications and posters for sale, and discrimination statistics.
You can find decisions heard under the ADA at the Administrative Decisions Tribunal (previously Equal Opportunity Tribunal) at http://www.lawlink.nsw. gov.au/adt or using the ADT link from the Board’s homepage. Decisions can be browsed by decision category, complainant name or decision number, or you can use Lawlink’s search template to focus your search.
The ADB's website also provides links to discrimination legislation and human rights indexes as well as federal and state anti-discrimination and human rights agencies. As federal human rights laws apply in NSW, the Human Rights and Equal Opportunity Commission (HREOC) is also a useful website to look at. It includes in-depth information about its functions and provides links to related organisations. You can sign up to receive email alerts in various HREOC-related subjects. Refer to http://www.hreoc.gov.au for more information.
Austlii, located at http://www.austlii.edu.au, contains the full text of Federal and State legislation, as well as decisions from major Australian jurisdictions and links to overseas cases. Scaleplus, located at http://scaleplus.law.gov.au/, provides full text legislation from Commonwealth and non self-governing territories. Some jurisdictions are updated more quickly than others so check the currency of the information.
You can trace the progress of bills at the NSW Parliamentary website, located at
http://www.parliament.nsw.gov.au/. This site is easy to use, and you can search bills by topic, alphabetically or by the proposing member. The second reading speech can be downloaded from here too, and this often provides information about how a particular law came about. You will need Adobe Acrobat Reader to access many of these items.
Other sources of online human rights information can be found through the National Library of Australia, which provides links to search engines and subject directories. You can browse various subject directories till you find one that includes a section on human rights, or you can use a search engine, either searching on a topic, or on the name of a known human rights agency which may provide quality links. Refer to http://www.nla.gov.au/pathways/pthw_global. html#allw.
Many libraries have online catalogues which may hold useful information. To search a library catalogue, go to the Australian Libraries Gateway at
http://www.nla.gov.au/libraries/ and search for your local library. If you find another library holds the publication you are after, you may be able to get it on an interlibrary loan.
Legal Information Access Centres (LIACs) are an initiative of the NSW State Library and the Law and Justice Foundation, and operate out of the State Library and many public libraries. LIACs hold a variety of hard-copy and electronic legal information, and have trained staff to assist you with legal research. For more information visit the State Library’s LIAC site on http://liac.sl.nsw.gov. au/ or phone 9273 1558.
Australian & NZ Equal Opportunity Law and Practice/CCH is a two-volume looseleaf service which provides case summaries and commentary for discrimination cases in all states, territories and the Commonwealth, as well as the full text of the various legislations. Yearly cumulations of cases are a handy reference. This resource is available in hard copy in the State Library as well as university libraries.
There are several commercially produced alert bulletins which provide summaries and commentary on discrimination and industrial issues. They include Discrimination Alert, published by CPD Thompson Legal and Regulatory – you can view a sample at http://www.cpd.com.au/cpdnews/allnews.asp, and Workplace Express, published by Workplace Express – details can be obtained at http:/www. workplaceexpress.com.au.
To find Australian journal articles and conference proceedings, you can search an electronic database which indexes Australian literature. AGIS (Attorney-General’s Information Service) indexes legal material and APAIS (Australian Public Affairs Information Service) indexes political and social science journals, and is a rich source of articles on the issues surrounding discrimination and the groups most affected by discrimination.
These databases provide some full text documents, but some may have to be obtained on interlibrary loan. Discussion papers and reports from Law Reform Commissions or universities are often published on the internet and can be located using a search engine such as google (http://www.google.com), or by looking on the parent organisation’s website.
When you consult a website or reference, note who publishes the information and when it was last updated so you can evaluate the quality of that information. There are further hints on evaluation at the New Mexico University website at
http://lib.nmsu.edu/instruction/evalcrit.html.
For further information you could refer to one of the many books on legal
research, e.g Effective Legal Research (2nd Ed), by Irene Nemes and Graeme
Coss, or ask your local librarian.
BRITISH CASE ON COMPULSORY TIES
A recent case in the Manchester court of the UK’s Employment Tribunal has raised the issue of compulsory wearing of ties by male employees.
The complainant was an administrative assistant employed in a Jobcentre managed by the Department of Work and Pensions. He was responsible for filing documents, sorting post and other clerical duties, and had no front line customer service role.
In June 2002, a new dress code was brought in, which did not prescribe a uniform but required employees to dress in a ‘professional and businesslike manner’. The new code stated that ‘men should wear a collar and tie. However, ties may be removed in hot weather with management permission. Women should dress appropriately and to a similar standard’.
Although there was some resistance to the new code, it was accepted by the majority of Jobcentre’s 90,000 employees. As the code was implemented, it became clear that female employees continued to dress as they had previously, but there was an increased burden and expectation on male employees.
The complainant refused to wear a collar and tie. He was given an oral warning, and then chose to comply under protest. He then lodged a complaint of sex discrimination against the department, backed by the Public and Commercial Services Union. Following this, over 40 fellow employees lodged similar complaints.
At the Tribunal hearing, the complainant agreed with the respondent that wearing a tie was not in itself onerous, but successfully argued that he had been treated less favourably. He showed photographs of female employees wearing clothes such as t-shirts and football jerseys, and demonstrated that they were not disciplined for wearing less than a ‘businesslike standard’.
The Tribunal found that while employers ‘must be allowed to manage and enforce … a dress code, so that they achieve their goals of corporate identity and/or smartness’, by forcing the applicant to wear a collar and tie, which were sex-specific items of clothing, he had been treated less favourably than his female colleagues.
The Tribunal found that although there can be permissible differences in the workplace between genders, the complainant had suffered two disadvantages as a result of the dress code: he had been forced to wear clothing and accessories he did not want to wear and had had to change his style of dress while his female co-workers did not; and he had been disciplined for breaching a constraint which was only placed on male employees.
The Tribunal awarded the complainant £1,000 compensation for injury to feelings, finding the injury to be at the lower end of the scale. It also recommended that the respondent develop a new dress code requiring the same standard of dress for both men and women. An appeal on the decision is scheduled to be held in October.
Following this case, over 980 Scottish employees of Jobcentre have lodged similar complaints. These cases will be held over until the outcome of the appeal is known.
Thompson v Department of Works and Pensions
Employment Tribunal, UK [2003] 2405602/02
SUCCESSFUL COMBINED INFORMATION FORUM AT PENRITH
The Anti-Discrimination Board’s Aboriginal and Torres Strait Islander Outreach team has participated in a second combined agencies’ information forum, this time at Penrith in Sydney’s west in September.
As well as the Board, the organisations involved included the Office of Industrial Relations, the WorkCover Authority, the Office of Fair Trading and the NSW Working Women’s Centre. There were also guest speakers including Solicitor Bob Whyburn and representatives from the Australian Taxation Office, the Health Care Complaints Commission and the Women’s Legal Resource Centre.
Opening with a welcome by local elder Pansy Hickey, the forum covered the rights and responsibilities of employers and employees, workplace harassment and discrimination, workplace safety, workers compensation, awards and employment laws in NSW and the services of the Office of Fair Trading.
The day also included a presentation to Kayelene Slater, who provided two paintings that will be used to identify the combined forum program. From the Kamilaroi tribe in Northern NSW, Kayelene uses traditional symbols with both traditional earth and brighter modern colours.
The feedback from those attending the forum was very positive, and there
have already been requests for more. The follow-up forum to the one held in
Penrith will be at Blacktown Workers Club on the 5th and 6th November, and
there will be more forums held throughout the state in the next year.
VIDEOS ON BULLYING
Duty of Care Bullying Prevention Series:
Employee Awareness and Response and Roles and Responsibilities for Supervisors and Managers (ph 1300 882 250)
These two videos are intended to inform employees and supervisors and managers
respectively about their rights and responsibilities with regard to bullying.
Both videos include a definition of bullying as repeated unreasonable behaviour that offends, humiliates or victimises a person or group of people. They also make the point that both bullies and victims come in all shapes and sizes, although bullies are generally in a more socially or hierarchically powerful position than victims, and victims are more likely to be younger members of staff or those with less secure positions.
Both videos contain an explanation about the types of behaviour that may constitute bullying in the workplace. These include initiation rites, rumours, excessive criticism, public insults, sabotage, abuse, threats of violence or dismissal, unrealistic work targets and isolation from co-workers. There is also useful information about what may not constitute bullying, such as one-off heated arguments, differences of opinion, or constructive criticism of work performance.
The video for employees explains that the employer is responsible for preventing
bullying, and gives strategies for employees to deal with bullying such as acquainting oneself with any relevant workplace policies, keeping a diary, getting witnesses, approaching the bully, talking to one’s supervisor and making a formal complaint.
The video for managers goes into more detail about the effects of bullying in the workplace, such as loss of productivity and increased staff turnover. It makes the point that bullying is not always visible, and gives things to look for that may identify it such as a spate of resignations or absenteeism.
The final section gives strategies for developing an anti-bullying culture, including having a policy in place and making sure staff are aware of it, monitoring the feeling in the workplace, having Contact Officers, guaranteeing confidentiality, conducting exit interviews, investigating complaints thoroughly, and acting immediately when bullying is identified. There is also information about procedures for dealing with complaints of bullying, and how to ensure that one is being fair to all parties concerned.