Equal Time Summer 2006page 1 of 14
Equal Time
Newsletter of the Anti-Discrimination Board of NSW
Number 68 Summer 2006
Contents
The year in review
Complaints profile 2005–06
ADB Complaints Finalised (July-Nov 2006)
A roof overhead
The best person for the job
Conciliations
The Anti-Discrimination Board of NSW
From the President
The year in review
The Anti-Discrimination Board’s Annual Report for 2005-06 was presented to parliament by Attorney General Bob Debus, on 21 November 2006. Board President Stepan Kerkyasharian reports that the year was a stable and successful one for the Board.
In 2005–06 the Anti-Discrimination Board has continued to provide a dedicated and efficient service to the people of NSW, in terms of assisting to resolve discrimination complaints, and informing employers, service providers and the general public about their rights and obligations under anti-discrimination law.
The Board operated throughout 2005-06 under the amendments to the Anti-Discrimination Act (ADA) that came into force in May 2005. These have enabled us to work more efficiently by allowing staff to make more decisions under delegated authority, extending the time limit for complaints and streamlining the process for declining complaints. Board staff continue to work on the process of applying the amendments and understanding how they operate in relation to other parts of the ADA and interact with other NSW legislation.
2005–06 also saw the first full year the Board spent in our new premises at 175 Castlereagh Street, into which we moved in March 2005. There were still some issues relating to the move to be resolved in early 2005–06, but it has been advantageous for the Board to be settled in premises which are suitable for staff and readily accessible to the public, while less expensive than our previous accommodation.
Our complaint numbers have remained steady in comparison with the previous year, but our improved efficiency has enabled Enquiries and Conciliation staff to increase the number of complaints finalised within one year from 81% in
2004-05 to 93% in 2005–06.
The Education Services Branch has also maintained its excellent work this year. Our fee-based training service for employers and service providers continued its highly successful program, increasing both the number of sessions delivered and the income received over 2004–05.
Our community education service ran several interesting programs in 2005–06 targeted at sections of the community that may be at particular risk of discrimination, including the Deaf community and recent migrants from Africa. Another enjoyable enterprise was our colouring competition for children, run to coincide with Law Week. We also ran a number of one-off training sessions for other community groups, and continued our comprehensive information program for Aboriginal and Torres Strait Islander people.
The Board’s Legal Officer continues to provide excellent interpretation and advice to myself, the Statutory Board members and staff as required. The Liaison and Support Branch remains committed to ensuring that service staff can operate with maximum efficiency by providing streamlined support services.
My thanks to all Board staff for their continued commitment to their work, and their contribution to a stable and successful year. Thanks also to my fellow members on the Statutory Board, whose guidance has been invaluable.
Stepan Kerkyasharian AM
Complaints profile 2005–06
This year the Board received 1,089 formal complaints of discrimination, as well as answering nearly 10,000 enquiries. The most common grounds of discrimination complained about were sex (23.1%), disability (21%) and race discrimination (16.6%).
The proportion of complaints under each ground are consistent with previous years, apart from a marked increase in complaints of racial vilification (albeit from a small base number — 39 this year vs 13 last year). This may reflect an increase in racial vilification following the highlighting of race issues in Australia in the last year, as well as the efforts of the Board’s education staff to increase awareness about vilification laws.
Employment-related complaints continued to be the single largest area of complaint (58.9%), followed by complaints relating to the provision of goods and services (22.9%).
Of the employment complaints, the most common matters were the work environment and harassment (54.4% of employment complaints), dismissal (15%), recruitment issues (13.7%) and job classification/benefits (9.4%). The most common employers complained about were in private enterprise (52.9% of employment complaints), state government departments (11.9%) and individual males (10.9%).
Only 26.4% of complainants identified their national origin. Of these, the largest groups identified as Aboriginal (7.4% of total complaints), country of origin Australia (3.5%) and country of origin India (1.6%).
Of the 39 racial vilification complaints, the largest groups identified as country of origin Lebanon (17.9% of vilification complaints), Australian Aboriginal (12.8%), and Arab (12.8%). The majority of racial vilification complaints (53.8%) were made against electronic media.
The amendments to the Anti-Discrimination Act (ADA) introduced in May 2005 enabled the Anti-Discrimination Board to process complaints more efficiently this year. This included clarifying the powers of the President, enabling staff to make more decisions under delegated authority, allowing Board staff to assist people who are unable to make their own complaint, and extending the time limit for lodging complaints, which has significantly reduced the time spent assessing out-of-time complaints.
Due to these changes, as well as ongoing improvements to the complaint handling process, the Board achieved the excellent result of finalising 93% of complaints within 12 months of receipt in 2005-06, compared to 81% last year.
The Board finalised 1,075 complaints this year. There was a significant increase in the number of complaints conciliated at or after a conciliation conference in 2005-06 (21%) compared with last year (14.6%). Another 11.6% were settled by negotiation without a formal conciliation conference, which is similar to last year.
The increase in the rate of conciliations may be due to the faster turnaround for complaints. The parties involved are likely to be more responsive to conciliation when the issues are still immediate, and there is a better opportunity to make changes that may deal with the complaint.
There was a drop in the number of complaints referred to the Administrative Decisions Tribunal because they were not conciliable in 2005-06 (10.7%) compared with last year (17.2%). This almost corresponds with the increase in conciliated complaints. The number of complaints withdrawn and abandoned is similar to last year.
ADB Complaints Finalised
Complaints closed between 1 July 2006 and 30 Nov 2006
452 complaints closed since 1 July 2006
68% (307) closed within 6 months of receipt of complaint
89% (401) closed within 12 months of receipt of complaint
97% (440) closed within 18 months of receipt of complaint
3% (12) longer than 18 months.
A roof overhead
Renting, discrimination and Aboriginal and Torres Strait Islander people
The provision of rental accommodation is a very important area in terms of eliminating discrimination, as it goes to the very core of people’s needs — for a roof over their heads, and for freedom from harassment under that roof.
It is understandable that landlords and real estate agents want to select ‘good’ tenants for their properties. However in making decisions about who will be the best tenant they run the risk of discriminating against some of the candidates, and according to enquiries and complaints received by the Anti-Discrimination Board, this is not uncommon.
Under NSW Anti-Discrimination law, it is unlawful to discriminate on the basis of sex, race, age, marital status, disability, homosexuality, transgender status and carers’ responsibilities in the provision of rental accommodation.
Yet the Board hears stories of landlords and real estate agents who don’t want to let a house or unit to an unmarried couple, to people with young children, to a single parent, to a group of young people, to a person with a physical or intellectual disability, or to people of a particular race.
One group that experiences particular discrimination issues relating to housing is Aboriginal and Torres Strait Islander people. Estate agents and landlords may make decisions based on stereotyped assumptions about Aboriginal and Torres Strait Islander people’s ability to pay rent, look after a property and so on.
It is unlawful to deny a person accommodation because they are Aboriginal, to defer an Aboriginal person’s application or place them lower down on a list of applicants, to offer accommodation on different terms, to offer a different quality service (eg a different level of maintenance of the property), to provide the service in a different personal manner, to harass a person because they are Aboriginal or to evict them because they are Aboriginal.
Research conducted by the Anti-Discrimination Board and the then Department of Fair Trading in 1999 revealed that the main problem for Aboriginal people is in accessing rented accommodation in the first place. If they are given access to accommodation, they may only be offered places in certain parts of the town or city.
A common situation is reflected in a case heard by the NSW Equal Opportunity Tribunal, in which an Aboriginal woman was told on the phone by a real estate agent that there were flats available in her price range, but when she went to the office she was told there were none. When her Caucasian friend went to the office the same day, she was told there were flats available. The Tribunal found that she had been discriminated against and awarded her $6,000 in damages.
If agents deliberately deceive Aboriginal customers, this may also be unlawful under fair trading laws, which state that an agent must not engage in conduct that is ‘misleading’ in connection with the supply of services to a customer.
In another case in Inverell in Northern NSW, an Aboriginal woman had already been living in a house with the lessee for six months, but she was refused the lease when the original lessee moved out. The Administrative Decisions Tribunal found that she had been discriminated against and awarded her $10,000 in damages, noting that the denial of housing is a violation of a fundamental human right.
Another common form of discrimination is where it appears that more stringent conditions are applied to Aboriginal tenants than to non- Aboriginal tenants, such as charging a higher bond, as well as problems with matters such as water bills and bond money.
If agents rank applicants for a property according to their income, this may result in indirect discrimination against Aboriginal people (who on average earn less than non-Aboriginal people), as well as women, single parents, young people and so on. Indirect discrimination is where a requirement that is the same for everyone has an unequal effect on particular groups.
A fairer system might be to rank people according to when they lodge their application and then consider in turn each person’s capacity to pay the rent and maintain the property.
If discrimination does occur, both the managing agent and the landlord can be liable. It is not a defence for an agent to say that they were following the owner’s instructions.
The Anti-Discrimination Board’s Aboriginal and Torres Strait Islander Outreach team has been working with the Office of Fair Trading to provide training for landlords and real estate agents in discrimination issues, as part of their continuing professional development.
In this training the Board makes a number of recommendations about how landlords and real estate agents can avoid discriminatory practices. The essential principle is that people should be assessed on their merits and not on the basis of assumptions about their race.
To do this, agencies should begin by ensuring that their business culture is one which promotes tolerance and fairness. All staff in an agency should be made aware of the company’s service procedures and code of behaviour. The Board also suggests that agents develop a letting policy which states that the company will not discriminate, and display this publicly.
It is also a good idea for agents to tell tenants why they were unsuccessful with a tenancy application. If they are left guessing they may be more likely to suspect discrimination.
Agents should also be aware that Aboriginal people’s experience might be different, and they may not be able to fulfil all the criteria that are commonly used in determining who can rent a property. However this does not necessarily mean they will make bad tenants.
For example, Aboriginal people may not have references from previous landlords, as they may be more likely to have lived with a family member or in government housing. An alternative could be for real estate agents and landlords to recognise references from key Aboriginal people such as elders, Land Council members or officials of other Aboriginal organisations.
The best person for the job
Potential employees who know that recruitment will be based on sound EEO principles, and that they will not be disadvantaged by irrelevant facts like race or age, are more likely to apply for positions with your organisation.
Knowing that they were recruited on merit, they can be confident of fair decision-making in all areas of the work environment.
Result? The employer has the best person in the job and will be training, promoting, and otherwise developing its workforce to be as productive as it can be.
It’s a win-win situation.
Recruitment does, however, still raise uncertainty and concerns among workplace participants on both sides of the fence.
Avoiding discrimination
Discrimination usually occurs when an employer makes decisions on the basis of the group (sex, disability etc.) to which a person belongs or on the basis of characteristics generally ascribed to that group. In other words, decisions are made on the basis of stereotypical attitudes rather than the strengths, weaknesses and suitability for the position of the individual applicant.
In other words, the employer has narrowed the field from which it can recruit and may, indeed, be losing the best person for the job.
How can you avoid discrimination?
The Queensland tribunal which decided that job applicants at Virgin Blue[1] had been discriminated against on the basis of age, provided a few tips:
Members of the selection panel for those jobs were all under 35. They applied a young person’s stereotypical view of suitable applicants to the field of candidates. A more diverse selection panel may have avoided this mistake.
•The test which the selection panel devised for determining ‘behavioural competencies’ was weighted against older applicants. Younger applicants are more likely to be able to ‘sing and dance’ in a way that will appeal to a young selection panel than are older applicants.
•The members of the selection panel had not been trained in EEO recruitment principles.
•The recruitment process was not supervised or monitored by senior managers. The fact that, of 750 applicants, only one person over 35 was recruited, should have raised some questions.
Of course, it’s not unlawful to recruit on the basis of genuine job requirements.
Before recruiting new staff, work out what makes people good/excellent in the job. What skills, abilities, qualifications or experience are really essential? Check the list of assumptions to make sure that you are not unnecessarily excluding people or being discriminatory.
Exceptions and Exemptions
There are exceptions to the ordinary rules about unlawful discrimination. Exceptions apply automatically and include junior employees and essential and relevant job requirements.
Youth, beauty and femininity are obviously genuine and relevant job requirements for a womens’ fashion model. These are not genuine and relevant requirements, however, for the position of receptionist.
Good grooming, presentation, manner and speaking voice may be necessary for someone who is expected to present a good image of the employer to outsiders. But these are not qualities possessed only by young attractive women.
Other examples include:
•a male actor for a male part in a play, or
•a woman to clean female toilets while women are likely to be using them, or
•a person of a particular ethnic group or age group to provide welfare services for that ethnic group or age group where this is the most effective way of providing the service, or
•a person of one gender rather than the other where the job involves the delivery of personal welfare or educational services to that gender and a substantial number of those receiving the services might reasonably object if they were delivered by someone of the opposite gender.
It is also possible to apply for an exemption where a recruitment decision is intended to redress some kind of discrimination or disadvantage. To apply for an exemption, contact the Legal officer at the Anti-discrimination Board. Examples of the types of services which would require a special needs exemption might be women’s health services or a refuge for women only or for men only.