Equal Time Spring 2007 Page 1 of 20

Equal Time Spring 2007 page 1 of 21

Equal Time

Newsletter of the Anti-Discrimination Board of NSW

Number 70 Spring 2007 30th Anniversary special edition

Contents

From the President...... 2

Discrimination at work huge cost for employers...... 3

Pioneering discrimination law...... 4

Forum: Thirty Years of the NSW Anti-Discrimination Act - Where to Now?...... 7

A time for celebration...... 8

My, how we’ve grown!...... 9

Aboriginal & Torres Strait Islander Outreach...... 11

Community events...... 12

Conciliations...... 13

Legal developments...... 16

The Anti-Discrimination Board of NSW...... 20 Equal Time Spring 2007 page 2 of 21

From the President The Anti-Discrimination Board of NSW is celebrating 30 years of Anti-Discrimination Law in NSW. The NSW Anti-Discrimination Act of 1977 was a milestone in NSW legal history and a victory for social justice. The original Act made discrimination on the grounds of sex, race and marital status unlawful in the areas of employment, goods and services and accommodation. Amendments over the years added further grounds and areas including physical disability in 1981, homosexual discrimination in 1982, racial vilification in 1989, compulsory retirement in 1991, age and HIV/AIDS discrimination in 1994, transgender discrimination in 1996, sexual harassment in 1997, and carers’ responsibilities discrimination in 2001. Thirty years ago, NSW decided to get serious about equal rights for all. But what good is legislation without action? That’s why the Anti-Discrimination Board is so important. The thousands of enquiries and complaints we receive and resolve every year show we are delivering a valuable service to the people of NSW. Employers are now serious about their obligations to treat their employees with respect. Employees are more aware of their rights, and their options. Our education program offers a valuable service to workplaces and community groups. As we celebrate the 30th Anniversary of the Act, let us look back with pride at this valuable piece of human rights legislation and at what it means for us today. Let us appreciate the service of the Anti-Discrimination Board to the community. And let us look forward to a future of human rights for all people in NSW.

Stepan Kerkyasharian AM Equal Time Spring 2007 page 3 of 21

Discrimination at work huge cost for employers

The New South Wales Anti-Discrimination Act of 1977 turns 30 this year. The social landscape of Sydney and New South Wales has changed dramatically in those thirty years, but discrimination continues.

The NSW Anti Discrimination Board fields 10,000 enquiries and investigates over 1000 formal complaints each year from people who are still experiencing discrimination. In the 30 years of operation, the Board has investigated 34,290 cases. People are still denied a new job or promotion because of their sex. Workers are still experiencing difficulties because they have a disability. Race discrimination is still occurring at pubs and bars. Workplaces are still not free from bullying and harassment. Sex discrimination in the workplace is the one area where NSW workplaces need to do better. It was the most common ground for complaints received by the Anti-Discrimination Board last financial year. Pregnancy discrimination in NSW is unlawful but we continue to see women experiencing trouble at work during and after pregnancy. Women have the right to one year unpaid maternity leave, the right to return to the same position, and the right to fair treatment of their carer’s responsibilities. Workplaces, from local businesses to large multinationals, are vulnerable to complaints if they discriminate against pregnant women or workers with carer’s responsibilities. That’s something business appears slow to comprehend. The loss of expertise of skilled women pushed from their workplaces is only going to get bigger. Not to mention the costs to business in lost productivity, legal fees, payouts and recruitment costs. Parents are frustrated by their inability to balance work with responsibilities at home because of rigid workplaces. A separate dimension of discrimination is the low level of female participation rates as legislators, senior managers and politicians. This is related to two other indicators of discrimination: the gender pay gap, and the fact that Australia is one of only two countries in the Asia–Pacific region where women have no right to paid maternity leave. Combine these factors with inflexible working hours and reduced access to child-care, and many parents are forced to choose between work and home. The UN Global Gender Gap ranked Australia at sixteenth place, behind our neighbours in New Zealand, Philippines and Sri Lanka. The index measured Australia on four areas of equality between men and women in economic participation and opportunity, education, political representation and health. Gender balance is an issue for everyone, because workplaces dominated by one gender are missing out on the chance to promote diversity and human rights, and to deliver better service to their clients. The UN’s 2007 Equality at Work report says discrimination in the workplace on the grounds of age, sexual orientation, HIV/AIDS status and disability is increasing. The report also calls for umbrella policies to address sex discrimination and gender gaps in pay and employment, to help workers balance work and family responsibilities. Discrimination is still a social problem and lack of awareness of the potential costs of discrimination persists. We still have a long way to go to protect the human rights of our people in NSW workplaces. NSW had the foresight in 1977 to legislate against discrimination thirty years ago. After thirty years of the Act, the pace has slowed. We need it now more than ever..

Stepan Kerkyasharian AM Equal Time Spring 2007 page 4 of 21

Pioneering discrimination law An interview with Graeme Innes

Lawyer, mediator and company director Graeme Innes has had a long and successful career in anti-discrimination law. He is currently Human Rights Commissioner and Commissioner Responsible for Disability Discrimination with the federal Human Rights and Equal Opportunity Commission (HREOC).

Graeme’s first job in the human rights field was with the Anti-Discrimination Board of NSW, where he worked as a conciliator for four years in the early 1980s. As he has been blind from birth, he knew from first hand experience how frustrating and demoralising discrimination can be. Graeme says he wanted to be a lawyer from his early teens. ‘I wanted to study law because I though that’s how you improved the community generally,’ he says. ‘I always thought that the community could operate better than it did, and I wanted to be part of that process.’ When he was studying in the 1970s, there were no computers with screen-reading software, and no internet-based legal databases. He used cassette recordings of law books read onto tape by volunteers, or Braille books transcribed by the then Royal Blind Society. The range of material he could access was limited compared with other students, so he says he had to compensate by ‘knowing the books which I did have better than anyone else’. Although Graeme was not the first blind person to study law, they were few and far between, and he hit a major discrimination barrier when he tried to find a job after completing his degree. ‘I applied for about 30 jobs in legal positions, with government agencies and the private sector,’ he says. ‘About half the jobs I applied for I wasn’t the best applicant, which is fair enough, and the other half of it was that people couldn’t cope with the idea of how a blind person could operate as a lawyer. This was despite the fact that I went into interviews and presented all the ways I had worked out that I would do it.’ Eventually Graeme took a job as a clerical assistant in the NSW public service. After several positions answering phone enquiries he moved to the Department of Consumer Affairs, again answering enquiries, but also getting interested in consumer law. He became a clerk in the legal section, and was eventually able to secure a position as a Legal Officer. ‘There was one person who saw how I operated as a clerk and was prepared to give me a go as a Legal Officer,’ he says. ‘So getting over the barrier was achieved by convincing an individual, just by demonstrating that I could work effectively at one level.’ During this time Graeme had also become involved in disability advocacy, and was the first President of Disabled People’s International in Australia. 1981 was the International Year of People with Disabilities, and among other things, disability groups had successfully advocated to have disability provisions included in the NSW Anti-Discrimination Act. ‘When the disability provisions of the act had come into place, Carmel Niland, who was President of the Board at the time, wanted a conciliator who had some disability knowledge and expertise, as well as general qualifications. So she encouraged me to apply for a position when one became vacant.’ ‘At that stage it was relatively new legislation, it was passed in 1977 so it was the first decade of implementation, and NSW was pioneering discrimination legislation in Australia,’ he says. ‘In that sense it was much less part of the culture, and discrimination wasn’t recognised and dealt with in the way that it is now.’ ‘So we were breaking some new ground, and there was a strong sense of camaraderie amongst the conciliators at the Board. I’m still good friends with a number of people who were conciliators at that time, Equal Time Spring 2007 page 5 of 21

so I think that says something about the relationships that were built. We were working very long hours, and there was a real level of energy and commitment, and people were passionate about the work they did.’ Graeme says the lack of recognition was particularly the case for disability discrimination. ‘Partly because it was later in the legislation, but more because I think it is harder to understand than things like sex and race discrimination. And I think the majority of disability discrimination occurs for a different reason than race and sex discrimination – what motivates people to discriminate against people with disabilities is often thoughtlessness rather than more intended behaviour.’ ‘So this affects how you address disability discrimination. I think the first thing that needs to occur when complaints are lodged is to ensure that the respondents understand the impact of what they have done. Often when that happens the discrimination is closer to being resolved – which I think is one of the reasons why in the Human Rights Commission the conciliation rate for disability discrimination complaints is higher than the overall conciliation rate for complaints.’ After four years Graeme decided it was time for a change and applied for a position as a conciliator in Western Australia. Later he returned to Sydney and worked in the private sector, developing programs to improve facilities for people with disabilities as employees and customers. The next step was to become a part-time member of a number of State and Commonwealth Tribunals, including the Social Security Appeals Tribunal, the NSW Equal Opportunity Tribunal, the NSW Consumer Claims Tribunal, the Residential Tenancy Tribunal and HREOC when it determined cases, prior to this function moving to the Federal Court. He was appointed to his current positions with HREOC in December 2005. According to Graeme, the major change since his early years at the ADB is that discrimination complaints have become more complex. ‘The easy issues are to a large degree solved,’ he says. ‘I’m not saying that there isn’t any sexual harassment now, but the majority of workplaces now recognise that it is unacceptable, so it happens a lot less, as with other grounds such as sex and race discrimination. Complaints are now harder to prove, so there are different challenges.’ ‘In the disability area again the issues are getting more complex. twenty years ago individual complaints were breaking new ground, but now there are stronger advocacy groups, and there are provisions particularly in the federal legislation to address those things more systemically, so they are more broadly challenged.’ Graeme still believes that law plays an important role in effecting social change. ‘Law usually follows social change, but it isn’t necessarily universally adopted, so then it can drive change,’ he says. ‘It’s often been the case that discrimination legislation has changed behaviour and then attitudes have followed. When a senior staff member at the Department of Main Roads was accused of sexual harassment in the early eighties, that really raised the profile of the issue, and demonstrated that women who were harassed could say no this is not acceptable - and there are numerous other examples.’ He sees age discrimination, sexual orientation discrimination and bullying as issues that need to be addressed more in the future, as well as the crossover between age and disability discrimination. ‘In the disability area, there are some pathways towards addressing transport issues through the DDA (Disability Discrimination Act) transport standards, but access to buildings continues to be a major problem, so we need an access to premises standard, and I think perhaps a stronger mechanism for policing those standards, rather than just individuals lodging complaints.’ ‘There needs to be a greater concentration on finding systemic solutions to situations that face people with disabilities, because mostly an issue that impacts on one person impacts on a whole range of people. I’d like to have a self-initiation capacity so that I could initiate complaints where I could see that there’s a systemic problem.’ Working in human rights bodies remains a challenge, particularly as government support waxes and wanes. ‘I think statutory organisations like the ombudsman and discrimination organisations can operate Equal Time Spring 2007 page 6 of 21

effectively in a context of government funding, but its important that they are separate statutory bodies, and people are appointed for a period of time, and that gives them a degree of statutory independence,’ he says. ‘It’s always going to be a challenge when you’re advocating on issues that can be seen to challenge government’s position on things, and you’ve got to balance between doing what you’re expected to do, which is advocate on human rights issues, but not advocate to the extent that you become marginalised and your voice loses its effectiveness. So that’s one of the major challenges in these roles. But I think there’s enough checks and balances that most of the time it isn’t a problem.’ And Graeme still feels the energy of those early days at the Board. ‘One of the reasons its so good to work in human rights is because people are so passionate about what they are doing, and the importance of what they are doing,’ he says. Equal Time Spring 2007 page 7 of 21

Forum: Thirty Years of the NSW Anti- Discrimination Act - Where to Now? Forum: Tuesday 30 October 2007 Sydney University, Elizabeth Brennan Lecture Theatre (at the Koori Centre, in the old teacher’s college)

Program 1.00 – 2.30 pm: Thirty Years of the NSW Anti-Discrimination Act: Where to Now? 2.30 – 3.30 pm: Refreshments (including Anniversary cake cutting) 3.30 – 5.00 pm: The NSW Anti-Discrimination Act and Indigenous issues. RSVP Please indicate if you’d like to come to Session 1, Session 2 or both Penny Lake – P: 02-9268-5562, M: 0438 -173824 E: [email protected]

Session 1 Panellists Mr Ken Davis President, Pride History Group Dr Suzanne Jamieson ADB Board member, Lecturer in Industrial Relations, University of Sydney Ms Chris Ronalds Barrister, Frederick Jordan Chambers (first lawyer employed at the ADB in 1977) Ms Joanna Shulman Principal Solicitor, NSW Disability Discrimination Legal Centre Dr Belinda Smith Lecturer in Anti-Discrimination Law, University of Sydney Session 2 Panellists Hon. Linda Burney MP Minister for Fair Trading, Minister for Youth, and Minister for Volunteering Mr Tony McAvoy Barrister, Frederick Jordan Chambers Mr Warren Mundine Chief Executive Officer, NSW Native Title Services Equal Time Spring 2007 page 8 of 21

A time for celebration

Linda Burney, NSW Minister for Fair Trading, Youth and Volunteering and a former ADB Board Member reflects on the thirtieth anniversary of the Anti-Discrimination Act

The thirtieth anniversary of the Anti-Discrimination Act is a time for celebration. It has long been recognised that a fundamental pillar of democracy is that all citizens should be treated equally. The beauty of humanity is its diversity. Gender, race, ability, religion, culture and other factors create this wonderful diversity. But sometimes unfair distinctions between individuals and groups are made because of these differences and that results in unequal treatment. It was not that long ago that Aboriginal people in NSW were refused entry to public swimming pools, pubs and hotels because of the colour of their skin – and there was no recourse or remedy. In 1977 the Wran Labor Government passed the NSW Anti-Discrimination Act. At the time it was a radical reform, coming just after the federal 1975 Racial Discrimination Act. Since its introduction the Act has helped restore self esteem and dignity for people who have been discriminated against. By investigating and conciliating discrimination complaints the Anti-Discrimination Board has provided important protections from prejudice and discrimination in key areas of life. These include employment, education and the provision of goods and services. We know that legislation alone does not change community attitudes. Prejudice often arises from misunderstandings and fear of the unknown. Too often, human rights are seen as abstract theoretical principles, remote from everyday life. And so as part of celebrating the thirtieth anniversary of the legislation, we also acknowledge the community education work that the Anti Discrimination Board has undertaken. I was a member of the Anti-Discrimination Board from 1992 to 1998 and saw its work first hand. The Board informs and educates the community, employers and service providers about their rights and responsibilities under the legislation. By doing this it also helps develop an understanding of what it means to treat other people with respect for their rights and dignity. By promoting public awareness about the legislation and the principles that underpin it, the Board is proactively working to ensure a more inclusive society. It is important to mark anniversaries like this one and keep the spirit alive. We need community education, engagement and leadership. It is not just the responsibility of the Board or the legislation – addressing discrimination is everyone’s responsibility. We all need to have the courage to speak out against discrimination even when it is unpopular. It is time to renew our commitment to human rights and building a society that is tolerant, harmonious and free of discrimination. Equal Time Spring 2007 page 9 of 21

My, how we’ve grown! a short history of Anti-Discrimination legislation in NSW

1976 – Conception.  With the Anti-Discrimination Board still a twinkle in its eyes, the original bill for the Anti- Discrimination Act was introduced into Parliament.

1977 – Birth  On 1 June the Anti-Discrimination Act, No 48 of 1977 (ADA) comes into force. The Act makes it unlawful to discriminate on grounds of: – sex; – race; – marital status. In the areas of : – employment; – accommodation; – goods and services; and – education (race only).  The new law sets up two new offices: Counsellor for Equal Opportunities and the Anti-Discrimination Board.

1980 – Starting to Toddle  On 28 April, the ADA was amended. The Office of the Director of Equal Opportunity in Public Employment was set up. Called ODEOPE, for short, everyone quickly forgot what the letters originally stood for.  Sex and marital status discrimination was made unlawful in the area of education.

1981 – Fourth Birthday  The ADA is amended to include physical disability as ground of complaint.  In September, two major milestones are reached. Registered clubs are added to the list of areas in which discrimination is unlawful, and the Equal Opportunity Tribunal is established to take over quasi-judicial functions of the Anti-Discrimination Board.

1982 – Growing up fast  Two important grounds for complaint are added: Homosexuality and intellectual impairment. The Anti-discrimination Board also takes over the role of the Counsellor for Equal Opportunity.  Later that year, the maximum amount of damages (compensation) which can be awarded to a victim of discrimination is increased from $20,000 to $40,000.  Job ads take on a whole new look. In April it became unlawful to publish advertisements that indicate an intention to discriminate unlawfully.

1989 – Vilification outlawed  Racial vilification becomes unlawful Equal Time Spring 2007 page 10 of 21

1991 – Compulsory retirement for some  Compulsory retirement becomes unlawful, but not for local council employees, firefighters, Electricity Commission employees, coal miners or private employees.

1993 – And then for others  Compulsory retirement provisions are extended to all public and private sector employees excluding occupations permanently excepted (eg: police, judges etc).

1994 – a HUGE year!  Age discrimination becomes unlawful in July, including discrimination against relatives or associates of a person discriminated against because of their age. Wages and conditions for employees who are aged under 21 years were, however, excepted.  The associates of people discriminated against because of sex, race, marital status, and homosexualty are brought within the Act’s protection, and  a major step is taken when Disability discrimination replaces physical and intellectual impairment as grounds for complaint.  HIV/AIDs vilification becomes unlawful and the maximum penalty for serious racial vilification is increased.  The definition of Race is extended to include ‘ethno-religion’ and ‘descent’.  Gender neutral ‘genuine occupational qualification’ are added to the ground of sex.  Marital status is extended to cover goods and services.  The Act covers industrial awards and agreements  The section exempting aged accommodation is clarified  Gender neutral language is introduced to all sections of the Act.  A new section is added to enable Ministers to grant exemptions for special needs programs for any group identified in the Act.

1996 – Transgender Status  On 1 August the Act is amended to prohibit discrimination or vilification on the ground of transgender status.

1997 – Sexual Harassment and reasonable steps  A new Part 2A, prohibiting sexual harassment commences this year.  In another change, the liability of principals and employers is limited if all reasonable steps were taken by them to prevent contravention of the Act by agents and employees. 2001 – Carer’s Responsibilities  Recognising that employees need to care for family members from time to time, discrimination on the ground of a person’s responsibilities as a carer in employment is declared unlawful. Employees who are the prime carers of family members in need of extra support are now entitled to ‘reasonable accommodations’ to allow them to fulfil their responsibilities. 2005 – Procedural amendments  In May, procedural amendments to the ADA came into effect. The amendments mainly relate to how complaints of discrimination are dealt with. The main changes include: – extending the time limit for lodging complaints from six to twelve months; and – giving the President new powers to decline complaints. 2007 – What next? Equal Time Spring 2007 page 11 of 21

Aboriginal & Torres Strait Islander Outreach

National Aboriginal & Islander Day of Celebrations (NAIDOC)

To celebrate NAIDOC 2007 the ADB Aboriginal and Torres Strait Islander outreach team ran information stalls at NAIDOC events held in Blacktown, Parramatta, Shalvey, Villawood, Port Macquarie, Kempsey & Forster.

Parramatta Aboriginal Women’s Gathering

In July, the outreach team went to the Parramatta Aboriginal Women’s Gathering which was held at Parramatta Lake. These gatherings are for Aboriginal women to get together and discuss health issues or any other business relating to their community. Word has obviously got out about these gatherings and the group has grown in numbers and is still expanding. The gatherings happen at the end of each month at different venues. Cumberland Women’s Health organise these gatherings as part of their program. For information regarding the Board’s Aboriginal & Torres Strait Islander Outreach Program or for advice regarding discrimination issues, please contact the Boards Aboriginal & Torres Strait Islander Enquiries/Community Liaison Officer on: (02) 9268 5555 or if ringing outside of Sydney 1800 670 812. Equal Time Spring 2007 page 12 of 21

Community events

Disability Seminars Each year approximately 45,000 people sustain a brain injury in NSW through traumatic and non-traumatic causes. This can result in a ‘hidden disability’ such as cognitive difficulties. The ADB’s Community Education Officer Claire Williams facilitated two seminars to clients with brain injuries. The first for Head East in March; an organisation whose mission is to ensure people with an acquired brain injury, living in Eastern Sydney, have access to opportunities which will foster long term reintegration into their communities. The second seminar in April was for the Brain Injury Association of NSW(BIA).The BIA aims to raise awareness amongst services, government and the community about the needs of people with acquired brain injury, their families, carers and friends. Many survivors and their families have become frustrated by the lack of community understanding, support and specialised services for people with a brain injury. During both seminars participants voiced their concern and frustration at being discriminated against in the area of employment and the lack of understanding employers had about their needs and abilities.

Tafe And Auburn Job Expo In May, Claire Williams and Diane de Souza facilitated four sessions on anti-discrimination law at Meadowbank Tafe for welfare students and Claire also ran two sessions at Ultimo Tafe. Enabling community work students to gain an understanding of anti-discrimination legislation is integral to the work of the ADB as community workers are the key to empowering and supporting their clients to make a complaint about discrimination. This is community capacity building in action. Auburn is one of the most culturally diverse, rapidly changing, local government areas in Australia with residents originating from over 100 different countries (Auburn Council Citizenship Statistics, 2006). On 29 May Claire Williams attended the Auburn Job Expo run by Auburn Council and hosted a stall about anti- discrimination law. Information was provided in a variety of languages. The Expo offered a great opportunity for community members to gain access to employers and is aimed at better equipping job seekers to present themselves to prospective employers. The ADB stall was very popular with visitors very interested in their rights and responsibilities under anti-discrimination law.

North Sydney Council In partnership with North Sydney Council and the Lower North Shore Multicultural Network Claire Williams ran two seminars for community workers in the lower north shore area in June about discrimination, their clients rights, the Anti-discrimination Act and how their clients can make a complaint to the Board. The first was in Crows Nest and the second was in Chatswood. The seminars were very popular in attendance with over 70 participants and the feedback was extremely positive. Participants commented ‘I did not know much before but I now feel more confident’, ‘very informative and I believe more workshops should occur’ and ‘give this workshop to everywhere in Sydney and make everyone aware of their rights’. Equal Time Spring 2007 page 13 of 21

Anti Discrimination Board Conciliations

Disability discrimination

The complainant was employed as a laboratory technician by the respondent. She alleged that the respondent discriminated against her on the ground of disability when it introduced changes to the provision of its services. The complainant suffers from Rheumatoid Arthritis and required regular meal breaks to take medication for relief of painful symptoms. She alleged that the respondent’s new arrangements for servicing its clients meant that she was rostered at short notice and it had made it more difficult to manage her condition. The complaint was resolved at conciliation when the complainant and respondent were able to come to agreement on the details for a new rostering arrangement for the complainant.

Age discrimination

An 18-year-old woman applied for employment as a receptionist with a motel. She alleged that when she rang about the job advertisement the contact person made comments about her sounding very young and then enquired about her age. She also alleged that the contact person then told her that she was too young for the position and they were seeking someone older. The motel’s management said that it conducted an investigation to determine what had occurred and that none of its employees could recall the conversation. The motel maintained that the contact person authorised to take enquiries about the position, while not recalling the specifics of the complainant’s enquiry, had advised all applicants that they must be 18 years of age as the position entailed receiving and delivering orders for alcohol. The respondent further advised that the successful applicant was aged 18 and suggested that the complainant had misunderstood the conversation. The matter was resolved at conciliation when the motel advised the woman that it would review and re-issue its anti-discrimination policy to all employees. The parties agreed that the complainant would undertake a work placement with the respondent as part of the complainant’s TAFE hospitality course.

Disability discrimination and harassment

The complainant was employed as a tradesperson in the building industry. He alleged that his employer discriminated against him by seeking to cull its workforce by targeting employees who had suffered workplace injuries or who had made workers compensation claims. He alleged a senior officer was harassing him in an attempt to force his resignation because he fell into this category of employees. The matter was resolved at conciliation when the complainant accepted an assurance from his employer that they were not seeking to terminate his employment and that the company did not condone any form of harassment.

Sexual harassment and victimisation

A woman was employed in a senior role. She alleged that her team leader sexually harassed her when he subjected her to unwelcome touching and foul language including a reference to women’s genitals. She also alleged that when she complained about the conduct to her Manager, he failed to address the conduct and victimised her by overlooking her for a promotion because he felt that she was too stressed. The team leader admitted to some of the touching and swearing incidents but asserted that a reasonable person would not have construed the incidents as being of a sexual nature and would not have been offended by the conduct. The matter was resolved between all four parties when the complainant accepted a payment of $6,000 without admission of liability from the respondents in settlement of all her claims. Equal Time Spring 2007 page 14 of 21

The complainant applied for employment with a labour hire agency as a heavy vehicle mechanic. The arrangement was that, if successful, the complainant would be employed by the respondent and put to work on the worksite of a host employer. The complainant had suffered a number of major injuries in his previous employment and was unable to lift more than 15 kilograms. After undergoing an employment medical, the agency advised the complainant that it would not offer him employment because the type of employment he sought would pose too great a risk of re-injury. The matter was resolved at conciliation when the complainant accepted the respondent’s reasons. And the respondent encouraged the complainant to apply for other less strenuous work.

Disability discrimination and harassment

A truck driver was employed on a contract basis by the respondent. He alleged that after taking nine weeks off to recuperate from a work injury, a supervisor advised him that he didn’t deserve his set runs back after taking so much time off work. The matter was resolved prior to conciliation when, after receiving the Board’ notification of the complaint, the respondent met with the complainant who accepted the respondent’s reassurance that his employment would continue.

Race discrimination and harassment

An Indo-Fijian man worked for the respondent as a supervisor. He alleged that he had been subjected to racist abuse in his employment when a subordinate worker referred to him as a ‘f***ing black c***’. He alleged that after reporting the conduct to the respondent’s General Manager, the respondent failed to take adequate steps to effectively deal with the matter. The matter was resolved at conciliation when the respondent agreed to review its policies and procedures on harassment and anti-discrimination and the complainant was provided with a verbal apology.

As a result of a serious motor vehicle accident the complainant suffers from a rare condition termed as indeterminate quadriplegia. He was paralysed for a period following the accident, but is now able to stand walk and grasp. Despite achieving this level of mobility, the complainant has an unsteady gait and appears rigid in his limbs. His condition means he is not able to perform the fine motor skills required to undo buttons and zippers. So that he can dress himself unaided he wears elasticised tracksuit pants. The complainant is a member of the respondent Club. The complainant alleges that the club directly and indirectly discriminated against him on the ground of disability. He alleges that after attending the Club on a number of occasions without incident, on the night of the alleged conduct he was refused entry because of his attire. He alleges that the Club officers at the door refused to accept his explanation for his inability to comply with Club dress regulations. He also alleged that when he tried to explain the effects of his condition he was roughly and unnecessarily ‘man-handled’ away from the Club entrance. The matter was resolved during a conciliation conference when the Club agreed, without admission of liability, to provide the complainant with $3,000 and the cost of tailor-made elasticised dress pants.

Sexual harassment

A 17-year-old girl worked for a fast food restaurant. She alleged that the Assistant Manager of the restaurant sexually harassed her when he subjected her to unwelcome touching and distributed pornographic publications to her boyfriend in the car park of the restaurant. The complaint against the manager was resolved at conciliation when the complainant accepted a without prejudice payment from the manager in settlement of that part of the complaint which was lodged against him. The complainant’s employer was not able to come to agreement with the complainant. The employer asserted that the complainant was not subjected to conduct of a sexual nature and that in any event; it had taken all reasonable steps to prevent the conduct before and after the event. The complainant has requested that Equal Time Spring 2007 page 15 of 21

her complaint against the employer be referred to the Equal Opportunity Division of the Administrative Decisions Tribunal for determination.

Race and disability discrimination in employment

The complainant is African and was employed as a labourer. The complainant suffered a workplace injury and required time off work and then returned to work on restricted duties. He alleges that the respondent discriminated against him on the ground of his race and disability when his employment was terminated. The complainant further alleged that the respondent failed to re-hire him as it did other workers who had been encouraged to take leave rather than be terminated. The respondent denied that the complainant’s injury or race were a factor in the company terminating the complainant’s employment. The respondent asserted that the construction industry revolved around available work and that the job for which the complainant had been employed was coming to an end. The respondent asserted that the complainant was treated no differently to the 12 other workers whose employment was also terminated at about the same time. The respondent agreed that some workers had taken leave to try to tide them over between jobs and while this was also open to the complainant he had already exhausted his leave entitlement. The respondent asserted that the re-hiring of workers occurred many months later and that the complainant had not re-applied for work as had the other employees who were re-hired. The matter was settled without admission of liability when the complainant and respondent agreed to a payment of $9,500 in settlement. Equal Time Spring 2007 page 16 of 21

Legal developments

Rostered off because of accent

The Administrative Decisions Tribunal has found that a Sri-Lankan born correctional services officer was discriminated against on the basis of his race when his supervisor took him off the roster at a jail’s control centre because she couldn’t understand him. The man had been with corrective services since 1990 and had been working with his supervisor for 16 months when she swapped shifts around so that he was replaced in central control by another officer of Caucasian background. When he asked her why she responded that “I’m not a racist but I cannot understand you”. When the man made a formal complaint, the jail’s acting supervisor ordered it be dealt with swiftly, and six days later ordered that he be put back on the central control roster. The supervisor claimed that the shift change was due to performance issues, however she had not raised any performance issues with him before. The Tribunal decided the comment was racist. He had not suffered any economic loss, but it awarded him $1000 compensation for hurt and humiliation. Perera v Commissioner for Corrective Services [2007] NSWADT 115

Nike discriminates against parent

The Victorian Civil and Administrative Tribunal (VCAT) has found that Nike discriminated against a former employee on her return from maternity leave. When Ms King returned to work after maternity leave she found her position had been divided into two positions. She was given the more junior position, despite the senior role including most of her previous responsibilities. She argued that she had been discriminated against because of her carers’ responsibilities. The sales manager of the company argued that the senior role was given to the better candidate. The Tribunal did not believe this because:  it being the job she had held it would not have been sensible to give it to someone else;  the sales manager had expressed concern about how women with children managed their time;  he had told Ms King to spend as much time as possible with the baby;  he had sent and email to other employees after Ms King’s return saying ‘Please welcome Sally back to the office and if she s p e l l s e v e r y t h i n g o u t when talking to you please be patient’. The Tribunal was satisfied that Ms King was not appointed because of the sales manager’s beliefs about the effect her carers’ responsibilities might have on her performance. Ms King was awarded $19,685 in damages. King v Nike Australia P/L (Anti-discrimination) [2007] VCAT 70 (24 January, 2007

Inadequate investigation of sexual harassment

The NSW Administrative Decisions Tribunal has found that Railcorp’s approach to dealing with a series of incidents where a female manager was humiliated by graffiti in the men’s toilets and had a pornographic magazine put under her door was fundamentally flawed. Equal Time Spring 2007 page 17 of 21

Railcorp was found vicariously liable for sexual harassment. The Tribunal found that graffiti in the men’s toilets at the train crew assignment centre was intended to ‘humiliate and harass Ms Hunt by creating an environment in which male staff would see the graffiti that demeaned Ms Hunt’. Railcorp maintained they had investigated and sought to deal with the six graffiti incidents Ms Hunt complained about. This included engaging forensic handwriting experts, regularly checking the toilets, installing closed circuit TVs and applying anti-graffiti paint to the toilet walls. Railcorp also gave evidence that employees at the centre attended briefings on workplace behaviour including discussion of harassment and inappropriate behaviour, Railcorps’s HR policies and the likelihood that harassment would result in dismissal. However, the Tribunal found that, despite Railcorp holding 17 staff briefings they did not involve all employees and were not compulsory. This was a “fundamental flaw” because it meant that some staff, perhaps including those who were least aware of sexual harassment and anti-bullying policies. For Railcorp to assert that it had taken appropriate steps to avoid being vicariously liable for the actions of its employees the Tribunal said that they needed to make sure that that all employees were aware of the policies. The Tribunal found that “while Railcorp did investigate each complaint, its response to the first and second incidents of graffiti was inadequate”. Staff training occurred several months after these incidents and the Tribunal therefore found that Railcorp was vicariously liable for the first two incidents of graffiti. Additionally the Tribunal found that although Railcorp investigated the pornographic magazine incident it “concentrated on trying to identify the culprit at the expense of or to the exclusion of accepting that the actions indicated that more should be done to reinforce the code of conduct and other policies of Railcorp”. Ms Hunt was awarded $20,000 compensation. Hunt v Rail Corporation of NSW [2007] NSW ADT 152 (24 July 2007)

Nurse victimised following maternity leave

The NSW Administrative Decisions Tribunal has found that a NSW hospital discriminated against and victimised a nurse by failing to return her to her previous duties when she resumed work following maternity leave. Ms Correy worked as a nurse in the palliative care unit at St Josephs Hospital in Aurburn for more than a decade. Before she returned from 12 months maternity leave she requested her hours be reduced from 24 to 16 per week. When she returned she was rostered to work on the aged psychiatric ward. She objected to this because her personal experience as a victim of domestic violence meant she was not suited to such a role. Despite Ms Correy having worked in palliative care for ten years the hospital argued there were no vacant positions in palliative care, she had not been employed specifically in palliative care and that she did not have a right to expect to work there on her return from leave. From then on she was rostered to work on aged psychiatry – the ward she had stated was most distressing for her. When the hospital refused to roster her in her old position, she didn’t return to work and pursued her discrimination claim. The ADT ruled that while Ms Correy might not have been employed specifically to work in palliative care, St Josephs had created the position by allowing her to work there for ten years. She was, therefore, entitled to return to it after her maternity leave. It found that the hospital had discriminated against her because of her caring responsibilities and her gender. The Tribunal also found that rostering her in aged psychiatry was victimisation because she had made the discrimination complaint. She was awarded $26,121 for economic loss. The ADT found that the hospital had breached its contract of employment with Ms Correy in failing to comply with its statutory obligations with respect to maternity leave. Equal Time Spring 2007 page 18 of 21

However, the Tribunal rejected the nurse’s claim for $30,000 in general damages, for injury to her feelings, embarrassment and humiliation, stress, loss of confidence and loss of enjoyment of life. Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104 (10 May 2007)

Sydney hotel’s door policy discriminatory

The NSW Administrative Decisions Tribunal has found that a Sydney hotel and their security firm discriminated against a man on the ground of his race when he was turned away by door men because of the hotel’s policy that people of Pacific Islander and Middle Eastern appearance were to be refused entry. Mr Cook is of Pacific Islander descent. The hotelier at Scruffy Murphy’s maintained he had introduced the policy because a number of assaults had occurred in the hotel’s vicinity allegedly by people of Pacific Islander and Middle Eastern appearance. The doormen that night were employed by T&B Security Services and had been instructed by the hotel to enforce the policy. Scruffy Murphy’s accepted Mr Cook’s version of events and agreed that it was in breach of the ADA. The hotelier apologised to Mr Cook at a conference at the Tribunal. The Tribunal found that the complaint against Scruffy Murphy’s was substantiated under s19 of the Act. However, the security firm argued that Mr Cook was not refused entry because he was an Islander. The Tribunal preferred Mr Cook’s version of events and noted that the hotelier had instructed the security staff to enforce the policy. The Tribunal found that T&B Security Services had aided and abetted Scruffys and had breached s52 of the ADA. The Tribunal found that Mr Cook had suffered hurt, humiliation, embarrassment and distress and awarded him a total of $5000. Scruffy Murphy’s was ordered to pay $2500 as compensation for the incident. While it had acknowledged its breach, it was the creator of the discriminatory policy and had instructed T&B to carry it out. T&B Security Sevices was ordered to pay $2500 because it had enforced the discriminatory policy and had prolonged the distress suffered by Mr Cook by its handling of the complaint. Cook v Scruffy Murphy’s Pty Ltd and anor [2007] NSW ADT 129

Navy vicariously liable for sexual assault, harassment and victimisation

The Federal Magistrates Court found the Australian Defence Department vicariously liable for the rape, sexual harassment and victimisation of a civilian employee at a naval base. In the judgement Federal Magistrate Michael Conolly found three male Navy officers and the Department liable for unlawful sexual harassment and discrimination. The victim was subjected to extreme sexual harassment over a long period of time. Her rape happened after a dinner party held after hours. The Court found, however, that it was a work related activity as it involved work colleagues and also that the rape was a direct continuation of the workplace harassment. Other breaches of the Human Rights and Equal Opportunity Commission Act and Sex Discrimination Act included unwanted touching, sexual advances, comments and messages, displays of pornography, as well as threats, verbal abuse, bullying and intimidation after the victim made an internal complaint against the perpetrator of the sexual assault. Consequently she suffered post traumatic stress disorder and depression, was unemployed, suffered serious damage to her family relationships and lost interest in recreational pursuits. The Court commented that she might have been able to put a stop to the harassment sooner had she had some equity and diversity training. The investigation into her complaint was described as ‘almost farcical’. Failures in fair grievance handling principles included: Equal Time Spring 2007 page 19 of 21

• supervisors and colleagues tried to force her from her job; • she was moved to another position, but still at the army base where she had contact with the perpetrator; • she was criticised by her supervisor for poor performance in bringing “personal problems” to work; • she was abused and belittled; • the assault was not investigated because she chose not to go to the police; • when asked to speak to the equity officer privately, her supervisor, a friend of the perpetrator, was told and soon the whole office knew about it; • the investigating officer was not properly briefed;  she was not told about her rights or the processes involved. Federal Magistrate Conolly ordered that the Government re-employ the woman in another department but declined to order any apology because the three men denied abusing her and it would require an ‘expression of a sentiment not genuinely felt’. He ordered payments of $100,000 plus interest and costs for general damages to compensate for pain suffering and humiliation. Additionally he ordered payments of $232,163 in special damages, $20,259 for past medical expenses, $5000 for future medical expenses and $30,000 for future loss of income. Lee V Smith & Ors [2007] FMCA 59, 23/3/07) Equal Time Spring 2007 page 20 of 21

The Anti-Discrimination Board of NSW

What types of discrimination do we deal with? The NSW Anti-Discrimination Board can only deal with discrimination complaints that are covered by the NSW Anti-Discrimination Act. This means that we can only deal with a discrimination complaint if:  it is based on any of the grounds listed below and happens in one of the areas of public life listed below; or  it is racial, homosexual, transgender or HIV/AIDS vilification, that is, a public act of incitement to hatred, serious contempt or severe ridicule. The laws do not allow us to deal with discrimination complaints based on other grounds (e.g. religion, political conviction), or based on events in your private life.

Grounds  Sex (including sexual harassment and pregnancy)  Race (including colour, nationality, descent, and ethno-religious or national origin)  Marital status  Homosexuality (male or female, actual or presumed)  Disability (past, present, future, actual or presumed)  Age  Transgender (transsexuality)  Carers’ responsibilities (in employment only)

Areas  Employment  Education  Obtaining goods and services (e.g. credit, access to public places, entertainment, government or professional services)  Accommodation  Registered clubs

Where we are Sydney Level 4, 175 Castlereagh Street, Sydney NSW 2000 PO Box A2122, Sydney South NSW 1235 ph (02) 9268 5555, fax (02) 9268 5500, TTY (02) 9268 5522 Enquiries/Employers Advisory Service (02) 9268 5544 Wollongong 84 Crown St, Wollongong NSW 2500 PO Box 67, Wollongong NSW 2520 ph (02) 4224 9960 fax (02) 4224 9961 TTY (02) 4224 9967 Newcastle Level 1, 414 Hunter St Newcastle West NSW 2302 ph (02) 4926 4300 fax (02) 4926 1376 TTY (02) 4929 1489 Equal Time Spring 2007 page 21 of 21

Toll free number — 1800 670 812 Website — http://www.lawlink.nsw.gov.au/adb