Unfairness in the Fair Work Act

This article is the first in a planned series looking at some of the outstanding issues that must be addressed in order to achieve genuine equality for lesbian, gay, bisexual, transgender and intersex (LGBTI) people in Australia.

 

These posts are not proposed in any order of priority, but will hopefully cover many of the barriers that remain, both big and small, as well as challenges that affect often-marginalised groups within the LGBTI community.

 

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

 

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

 

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

 

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

 

For example, sub-section 351(1) provides that ‘An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s 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.’

 

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

 

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

 

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

 

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

 

  • 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; and
  • 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 in the Act for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

 

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

 

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

 

**********

 

The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

 

27 May 2018

 

Dear Prime Minister

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

 

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

 

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

 

Sincerely,

Alastair Lawrie

 

 

**********

 

Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

 

27 May 2018

 

Dear Minister Cash

 

Please include trans, gender diverse and intersex people in the Fair Work Act

 

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

 

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

 

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

 

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

 

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

 

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

 

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

 

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

 

Sincerely,

Alastair Lawrie

 

**********

 

The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

 

The Fair Work Act entrenches these loopholes in two ways.

 

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

 

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

 

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

 

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

 

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

 

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

 

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

 

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

 

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

 

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

 

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

 

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

 

151222 Turnbull

Malcolm Turnbull claims Australia is a ‘nation of a fair go’. But will he ensure trans, gender diverse and intersex people receive a fair go under the Fair Work Act?

 

Footnotes:

[i] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.

Advertisements

7 Reflections on the Marriage Debate

It has truly been an amazing few days. With the House of Representatives vote on the Smith Bill on Thursday afternoon, its royal assent on Friday morning, and commencement at 12am Saturday (instantly recognising the overseas marriages of many LGBTI couples, and allowing thousands more to register their intention to marry), Australia is a different country – a better, fairer and more inclusive country – today than it was this time last week.

 

Now that I’ve had a few days to let this historic achievement sink in, here are some personal reflections on the marriage debate:

 

  1. It’s LGBTI marriage. It’s not marriage equality.

 

My first reflection is probably the most controversial: while the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, which permits all couples to marry irrespective of their sexual orientation, gender identity or sex characteristics, is obviously welcome, it does not deserve the moniker ‘marriage equality’.

 

That is because, as well as amending its definition, it also changes the ‘terms and conditions’ surrounding marriage in Australia, simply because LGBTI couples are finally allowed to participate.

 

This includes enabling existing civil celebrants to nominate to become ‘religious marriage celebrants’, and discriminate against LGBTI couples, solely on the basis of their personal religious beliefs [sub-section 39DD(2)]. As well as unnecessarily duplicating religious exceptions from the Sex Discrimination Act 1984 within the Marriage Act itself [section 47B].

 

The fact these amendments have been included now, but were not previously required in relation to divorced people re-marrying, suggests they have very little to do with ‘religious freedom’, and much more to do with homophobia, biphobia and transphobia.

 

Informed by past experience, the majority of LGBTI Australians fear that new rights to discriminate will be primarily used to target us – with recent research finding more than 60% of respondents strongly agreeing that, even if these laws technically allow discrimination against all couples, ‘it will disproportionately discriminate against same-sex couples’.

 

Of course, in the interests of ensuring LGBTI couples are able to marry at all, many people were prepared to accept these concessions. I certainly understand that viewpoint. But from my perspective, it means we now enjoy LGBTI marriage (or what a respected friend of mine describes as ‘partial marriage equality’) rather than genuine marriage equality.

 

And I think it is important to remind ourselves of this compromise, so that we can work to remove these discriminatory provisions in coming years.

 

  1. It could have been worse

 

Despite the significant flaws of the Smith Bill, we should also remember that it could have been much worse. At the start of November, most media commentary focused on how many ‘conservative’ amendments would be passed, allowing even more discrimination against LGBTI couples.

 

There was even the short-lived Bill from Liberal Senator James Paterson, the entire purpose of which appeared to be about entrenching ‘religious privilege’. Followed by amendments put forward by Attorney-General George Brandis, and supported by Prime Minister Malcolm Turnbull, to permit all civil celebrants to say ‘no gays allowed’.

 

One of the proudest moments of my own participation in the long fight for equality came in recent months, collaborating with a small group of advocates to oppose these changes. Rodney Croome, Felicity Marlowe, Shelley Argent, Brian Greig, Sharon Dane, Ivan Hinton-Teoh, Sharyn Faulkner, Robin Banks and Peter Furness all fought for the principle of full equality until the very end.

 

In that struggle we were not alone, with others – notably including the Equal Marriage Rights Australia Facebook page, Pauline Pantsdown, Jacqui Tomlins and Doug Pollard –making important public contributions.

 

I should also take this opportunity to thank everyone – family members, friends, blog readers, No Homophobia No Exceptions followers, and complete strangers – who completed the just.equal webform, to let MPs and Senators know there should be ‘No compromise on equality’. I understand close to 200,000 emails were sent, obviously having a massive impact. Thank you.

 

Together, we were able to alter the conversation, so that the Smith Bill was no longer seen as a ‘starting point’, to inevitably be dragged further to the right, but as the compromise it clearly was.

 

Together, we were able to persuade the Greens to introduce amendments to remove the egregious elements of the Smith Bill, amendments that, even if they failed last week, can be used for advocacy in the future.

 

Together, we helped to stop the Marriage Amendment (Definition and Religious Freedoms) Act 2017 from being much, much worse.

 

  1. It could still get worse

 

We must not overlook the fact that the reforms introduced last week are already under serious threat, as a result of the Review into ‘Religious Freedoms’ announced by Malcolm Turnbull on 22 November.

 

Former Liberal MP Philip Ruddock – the Attorney-General who oversaw the introduction of the ban on marriage equality in August 2004 – will spend the first three months of 2018 examining how Australian law can ‘better protect’ religious freedoms.

 

As we all know, increases in special privileges for religious individuals and organisations almost inevitably come at the expense of the rights of lesbian, gay, bisexual, transgender and intersex Australians (as well as other groups, including women).

 

Despite this, the panel for the Ruddock Review does not include any representatives from the LGBTI community (with Ruddock joined by the head of the Australian Human Rights Commission Rosalind Croucher, retired judge Annabelle Bennett and Jesuit priest Frank Brennan).

 

So, by all means spend the remainder of December celebrating our recent success. Because when 2018 starts we must stand ready to defend those gains, as well as protecting a wide range of other existing LGBTI rights, which will likely come under sustained attack.

 

  1. Renewed appreciation of the importance of LGBTI anti-discrimination laws

 

Some of the rights most at risk in the Ruddock Review – as they were during the parliamentary debate of the Marriage Amendment (Definition and Religious Freedoms) Bill – are our essential LGBTI anti-discrimination protections.

 

Indeed, one of the few positives of the past few months, amid the intense lobbying surrounding the Smith Bill, Paterson Bill and attempted conservative amendments, has been renewed appreciation of the importance of these laws within the LGBTI community itself.

 

After all, it is difficult to convey the significance of provisions, like LGBTI anti-discrimination sections within the Sex Discrimination Act, that should be needed less and less in practice as homophobia recedes (although the experience of the postal survey indicates that hopeful vision of the future remains some way off).

 

However, even if we don’t individually use them to lodge complaints, we all rely on the standards these laws set. Hopefully, the recent focus on the subject of anti-discrimination laws means the LGBTI community will be ready to fiercely defend our existing protections in the near future.

 

But we must do more than merely maintain the status quo. We must campaign to improve the protections offered by these laws, especially in terms of who is covered, removing religious exceptions, and introducing LGBTI anti-vilification laws where there currently are none (Commonwealth, Victoria, Western Australia, South Australia and the Northern Territory).

 

To find out more about the current status of these laws in your jurisdiction, see: A Quick Guide to Australians LGBTI Anti-Discrimination Laws.

 

The first opportunity to improve these laws is the public consultation by the Northern Territory Government on modernisation of their Anti-Discrimination Act. Submissions close 31 January 2018. For more information, click here.

 

  1. Marriage is not, and never has been, the only LGBTI issue

 

This point may seem obvious to most (but sadly not all) people within the LGBTI community, but it is less so to those outside, including some who sit in our nation’s parliament.

 

The denial of the right to marry was never the only form of discrimination to adversely affect lesbian, gay, bisexual, transgender and intersex Australians. For a lot of people, it wasn’t even close to being near the top of a long list of concerns.

 

Now that LGBTI marriage has been legalised, it is time to ensure a wide range of other issues receive the level of attention that they deserve, including (but definitely not limited to):

  • Ending involuntary surgeries on intersex children
  • Improving access to identity documentation for trans and gender diverse people
  • Ensuring the national Health & Physical Education curriculum includes LGBTI students, and content that is relevant to their needs
  • Implementing nation-wide LGBTI anti-bullying programs in schools
  • Fixing LGBTI anti-discrimination laws (including the broken NSW Anti-Discrimination Act 1977)
  • Stopping the offshore detention, processing and resettlement of people seeking asylum, including of LGBTI people in countries that criminalise them (such as Papua New Guinea), and
  • Ending HIV.

 

These last two issues directly affect the LGBTI community, albeit not exclusively. There are other issues that may not be specifically ‘LGBTI’ per se, but that we have an interest in, and a responsibility to help address.

 

That includes improving the treatment of people seeking asylum generally, supporting the campaign for constitutional reform for Aboriginal and Torres Strait Islander people – especially because the same-sex marriage postal survey was used to push the Uluru Statement from the Heart off the political agenda – and helping to Close the Gap. Oh, and addressing climate change (including stopping the Adani coal mine) because there’s no human rights on a dead planet.

 

  1. The ends do not justify the means

 

One of the most nauseating parts of the parliamentary debate last week (amid some fairly stiff competition) was the sight of Liberal and National Party MPs trying to retrospectively justify their decision to hold the postal survey in the first place.

 

They must never be allowed to get away with this argument.

 

The postal survey was unnecessary.

 

It was wasteful – at a final cost of $80.5 million (a figure that Coalition MPs should arguably be forced to repay).

 

And it was harmful, just as LGBTI Australians always said it would be: “experiences of verbal and physical assaults more than doubled in the three months following the announcement of the postal survey compared with the prior six months”, while “more than 90% reported the postal survey had a negative impact on them to some degree.”

 

As Junkee’s Rob Stott aptly described it: “Hey Malcolm, I’m glad you enjoyed the postal survey. It was one of the worst times of my life.”

 

Even the United Nations Human Rights Committee recently criticized the Government for this process:

 

“While noting that the State party is currently undertaking a voluntary, non-binding postal survey on the legalization of same-sex marriage, the Committee is of the view that resort to public opinion polls to facilitate upholding rights under the Covenant in general, and equality and non-discrimination of minority groups in particular, is not an acceptable decision-making method and that such an approach risks further marginalizing and stigmatizing members of minority groups.”

 

Which is exactly what happened.

 

The fact Commonwealth Parliament has since passed LGBTI marriage cannot be used to excuse the postal survey – because passing legislation is what parliaments are supposed to do. You know, like how John Howard banned marriage equality in August 2004, without an $80.5 million farce beforehand.

 

The postal survey should never have happened. And it must never be allowed to happen again.

 

  1. This was not Malcolm Turnbull’s victory. It was ours.

 

Another extremely nauseating moment last week was watching Prime Minister Malcolm Turnbull try to claim credit for the passage of LGBTI marriage.

 

This is a so-called ‘leader’ who:

  • Refused to introduce legislation to legalise marriage equality
  • Instead, imposed an unnecessary, wasteful and harmful postal survey on the LGBTI community
  • Then refused to participate in the Yes campaign, and
  • When legislation was finally before parliament, supported amendments to allow even more discrimination against LGBTI couples.

 

Thankfully, his brazen ‘gloating’ has been called out by people like Magda Szubanski and perhaps even more powerfully by Jordan Raskopoulos.

 

Malcolm Turnbull does not deserve credit for what he did. He deserves our condemnation.

 

On the other hand, and given the sheer scale of the accomplishment, there are plenty of individuals and organisations that do deserve our thanks. Including the advocates I named earlier. As well as, obviously, the Yes Campaign and Australian Marriage Equality, GetUp!, PFLAG Australia, Rainbow Families Victoria, the NSW Gay & Lesbian Rights Lobby, just.equal, Equal Love, CAAH, Rainbow Labor and the unions (well, most of them), and the Greens. Plus many, many more.

 

Nevertheless, one of the best parts about the long struggle for LGBTI marriage in Australia is that it was truly a collective effort, much bigger than any one individual. Because it involved millions of actions, by millions of people, the vast majority of which will never be recorded by history. Which means the victory belongs to everyone who has contributed to the fight along the way. All of us.

 

**********

 

So, there you have it, my final thoughts on the marriage debate. Feel free to share yours – including where you may passionately disagree – in the comments below.

 

But now, on a personal level, it’s time for me to stop writing about the right to get married. And to instead go and exercise that right, by planning Steven and my long overdue wedding.

 

House of Reps Vote

The moment LGBTI marriage was passed by the House of Representatives.