Wielding the big stick – Lessons for enforcing anti-discrimination law from the Fair Work Ombudsman

Anti-discrimination law is enforced by a person who has experienced discrimination by lodging a complaint at a statutory equal opportunity agency. The agency is responsible for receiving and resolving discrimination complaints and educating the community; it does not play a role in enforcing the law. The agency relies on ‘carrots’ to encourage voluntary compliance, but it does not wield any ‘sticks’. This is not the case in other areas of law, such as industrial relations, where the Fair Work Ombudsman is charged with enforcing the law — including the prohibition of discrimination in the workplace — and possesses the necessary powers to do so. British academics Hepple, Coussey and Choudhury developed an enforcement pyramid for equal opportunity. This article shows that the model used by the Fair Work Ombudsman reflects what Hepple, Coussey and Choudhury propose, while anti-discrimination law enforcement would be represented as a flat, rectangular structure. The article considers the Fair Work Ombudsman’s discrimination enforcement work to date and identifies some lessons that anti-discrimination law enforcement can learn from its experience.

Supporting working parents: findings from the AHRC’s national inquiry into the prevalence of pregnancy and return to work discrimination in the workplace

In July 2014 the Australian Human Rights Commission (AHRC) released the findings of its national review into pregnancy and return to work discrimination in the workplace1 which it conducted following a request from the Commonwealth Attorney-General’s Department.2 The review comes 15 years after the commission’s first inquiry into pregnancy discrimination in the workplace.3Federal law has prohibited pregnancy discrimination in the workplace since the Sex Discrimination Act 1984 (Cth) (SDA) came into force.4 It is now unlawful in every state and territory.5 Discrimination on the basis of breastfeeding and family or carer’s responsibilities is also prohibited.6 Since 2009 the Fair Work Act 2009 (Cth) (FW Act) has prohibited workplace discrimination based on pregnancy and family or carer’s responsibilities7 and the Act gives employees additional entitlements relating to their parental and caring responsibilities. Male and female employees who are the primary caregiver for a child are entitled to 12 months unpaid parental leave upon the birth or adoption of the child and can request an additional 12 months leave.8 Upon returning to work, they can request flexible working conditions9 and they are protected from adverse action, such as dismissal, for exercising these rights.10 Yet despite these legal protections, the findings of the national review show that employees continue to experience discrimination during pregnancy, when taking parental leave and upon re-entering the workforce. This note presents the main findings from the surveys and consultations that were held with employers and employees as part of the review and the review’s recommendations for addressing the prevalence of what it terms ‘pregnancy/return to work discrimination’.

The evolution of freedom of association in Australia's federal industrial relations law: from trade union security to workplace rights

The early provisions protecting freedom of association in Australian federal industrial relations law supported trade union security. The interests of individuals were seen as adequately protected by collective groups. This principle dominated the industrial relations laws from 1904 to the mid-1970s. However, from the late 1970s, the laws were incrementally altered to promote freedom of choice and the rights of individuals not to be part of trade unions. The reframing of the laws also reflected changes in the wider Australian community, manifested particularly in the decline of union density rates. These changes were also part of an international trend, favouring the ideology of neoliberalism which contributed to an unsympathetic environment for trade unions. The current Fair Work Act 2009 (Cth) has signalled a return to collectivism, although freedom of choice is at the heart of the laws rather than the promotion of collective groups. In the absence of legislative support promoting the viability of collective groups, this freedom to choose is threatened, leaving many workers with little choice but to disassociate.

Understanding employment relations

The text addresses workplace governance under the Fair Work Act 2009, as well as the role oftrade unions, employer associations, collective bargaining processes, and various laws pertaining to contracts of employment, equal opportunity and ...

Work choices : Increasing productivity, job creation and work-family balance? Not likely!

The introduction of the Workplace Relations (Work Choices) Amendment Act 2005 (Cth) has resulted in one of the most contentious changes to federal labour law in Australia’s history. There is considerable debate as to whether it has fulfilled the government’s expectations of giving ‘flexibility’ and ‘choice’ to both employees and employers or if there has been an overall deterioration in working conditions. In order to identify the impact of this legislation in the workplace, Deakin University surveyed 11,000 AHRI members throughout Australia. Preliminary results are reported in the paper but, even at this early stage, there is sufficient material to critically comment upon the changes to Australia’s industrial relations system. It appears that the vast majority of AHRI members felt that there had been no change in productivity, job creation or work-family balance and that only a few expected an improvement over the next 3 years.

Identity and self-presentation : from a representational to a performative lens in studying social media engagement in organisations

Social media make fast inroads into organisations. This raises issues regarding self-presentation and locating experts in these new emerging communication spaces, as the basis for effective social media-enabled knowledge work. However, research on self-presentation and identity in organisational social media is only just emerging and has been founded on broader understandings from studies of public social media. In this literature study we demonstrate that the existing body of research on identity in social media is dominated by a ‘representational lens’. Based on an analysis of the historic foundations of this stream of research, we will expose limitations of this lens in capturing contemporary engagement in online spaces and advocate for a ‘performative lens’ in studying identity work in organisations. We contribute a detailed exposition of the evolution of identity studies in the context of public social media, and we offer an alternative lens for studying the topic in organisational contexts.

Criminal processes and investigative procedures : Victoria and Commonwealth

This book is designed to be a useful and practical tool for both students and legal practitioners alike. In addition to focusing on the recently enacted Criminal Protective Act 2009, this text also highlights other key aspects of the criminal processes.