The Commonwealth Attorney-General’s Department has issued a consultation paper titled: ‘Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations’.
Submissions are due by Friday 28 February 2020. The following is mine:
Monday 24 February 2020
To whom it may concern
Cooperative workplaces must be trans and intersex inclusive workplaces
Thank you for the opportunity to provide this submission in response to the Cooperative Workplaces consultation paper.
I do so as a long-term advocate on behalf of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community.
In this submission I will focus on the following questions posed in the paper:
2. To what extent do employees benefit from cooperative workplaces?
7. How does the Australian industrial relations system support and encourage cooperative workplaces?
10. What has been the experience with techniques and practices to foster cooperative workplaces including, but not limited to: …
e) Fair treatment policies and procedures.
From my perspective, the benefits of cooperative workplaces flow from all employees being treated fairly and with respect, and where all employees are protected against discrimination on the basis of who they are.
If employees are able to bring their full selves to work, without having to hide who they are or fear mistreatment and other forms of abuse, they are likely to be happier, healthier and consequently work better.
Unfortunately, this is not the situation for all employees in Australian workplaces today. That’s at least in part because some groups, including trans and gender diverse, and intersex, employees do not enjoy the same rights as other employees.
Specifically, while gender identity and intersex status are protected attributes under the Sex Discrimination Act 1984 (Cth), they are not included in equivalent protections in the Fair Work Act 2009 (Cth).
For example, the adverse action provisions in sub-section 351(1) cover:
- Sexual orientation
- Physical or mental disability
- Marital status
- Family or carer’s responsibilities
- Political opinion
- National extraction, and
- Social origin.
Note that this long list does not protect trans, gender diverse or intersex people.
The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f), which protects employees against unlawful termination. Meaning that the Fair Work Act does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are.
There are other exclusions too:
- Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
- Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people;
- Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’
There is literally no requirement for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.
This leaves trans, gender diverse and intersex employees at a distinct disadvantage compared to other groups, including lesbian, gay and bisexual employees.
Indeed, even a certain infamous footballer was potentially covered against unfair dismissal on the basis of religious belief, whereas one of the main groups that he directed his offensive statements against – transgender Australians – is not.
I wrote to the former Prime Minister, Malcolm Turnbull, and the former Minister for Jobs and Innovation, Senator Michaelia Cash, raising this issue in May 2018, calling on them to amend the Fair Work Act to include gender identity and sex characteristics (being the terminology preferred by intersex advocate organisations including Intersex Human Rights Australia) as protected attributes.
I received a response to that letter from the then Minister for Small and Family Business, the Workplace and Deregulation, Craig Laundy, in July of that year, rejecting this call.
While he stated that ‘The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work”, he pointed to the SDA protections as being sufficient:
“The Sex Discrimination Act 1984 is the principal legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.”
Which, to be blunt, entirely misses the point.
First, other groups protected by the Fair Work Act, including those based on race, sex, age, disability and even sexual orientation, are covered by both that Act and an equivalent Commonwealth anti-discrimination law. If it is good enough for them, it is good enough for trans, gender diverse and intersex Australians.
Second, being included in the Fair Work Act gives people who are mistreated in the workplace, or unfairly dismissed, additional options in terms of making complaints, with potential implications for timing, jurisdiction, costs and compensation. Excluding gender identity and sex characteristics from one puts trans, gender diverse and intersex employees in an inferior legal position.
Third, there is a symbolic effect from the exclusion of gender identity and sex characteristics from the Fair Work Act, with many employers possibly viewing anti-trans and anti-intersex workplace discrimination as being less important than other types of workplace mistreatment.
Perhaps that is an inevitable outcome when the Government itself, as recently as 2018, was saying the same thing – loudly and clearly – by failing to address this obvious inconsistency, even after it was brought to their attention.
With a new Prime Minister, Scott Morrison, a new Attorney-General and Minister for Industrial Relations – both portfolios held by Christian Porter – as well as an apparent interest in ‘cooperative workplaces’, I believe it is essential for the Government to take action on this issue as a matter of urgency.
The Fair Work Act 2009 (Cth) should be amended to include gender identity as a protected attribute, with a definition based on the definition in the Sex Discrimination Act 1984:
‘Gender identity means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth.’
The Fair Work Act 2009 (Cth) should be amended to include sex characteristics as a protected attribute, with a definition settled after consultation with Intersex Human Rights Australia and other intersex individuals and organisations, and based on the definition in the Yogyakarta Principles + 10:
‘understanding sex characteristics as each person’s physical features relating to sex, including genital and other sexual and reproductive anatomy, chromosomes, hormones, and secondary physical features emerging from puberty.’
If these recommendations are implemented, then trans, gender diverse and intersex employees around the country stand to benefit from being able to work with less fear from workplace mistreatment and abuse.
In doing so, the Australian industrial relations system will better support and encourage cooperative and harmonious workplaces where people are able to bring their full selves to work (if they so wish).
And all workplaces will be encouraged to adopt improved fair treatment policies and procedures, that don’t exclude trans, gender diverse and intersex employees, and don’t treat prohibitions on transphobic and intersexphobic discrimination as somehow less important than prohibitions relating to other protected attributes, including sexual orientation.
Overall, Australia would benefit from a significant minority of happier, healthier and yes more productive employees.
Thank you for taking this submission into consideration. Please contact me at the details provided should you require additional information.
For more, see Unfairness in the Fair Work Act.
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