The Official Organ of LaborNET
click here to view the latest edition of Workers Online
The Official Organ of LaborNET
Free home delivery
Issue No. 129 22 March 2002  
E D I T O R I A L

Not So Happy Campers
It's a crude political truism: it's better to be inside the tent pissing out than outside the tent pissing in. At least for those on the inside.

F E A T U R E S

Interview: Pulling the Pin
Victorian union leader Dean Mighell outlines the thinking behind his decision to quit the ALP and join the Greens.

International: At the Crossroads
From Germany, to Britain, to South Africa, Canada and the USA it seems union members are turning on their political partners � and talking about divorce.

Unions: A Case Of Lost Identity
Victorian Trades Hall secretary Leigh Hubbard warns that more unions could leave the ALP if the current policy review hits the wrong note.

History: Rocking the Foundations
There was not just one model of what a political wing of the labour movement should be, Don Rawson writes.

Industrial: Rocky Road
Thirteen hundred Rockhampton workers are putting cars and houses on the line in an effort to beat off bully-boy tactics from Kerry Packer-owned Consolidated Meat Group.

Economics: Cracking a Coldie
As Australian icons fall around him, Neale Towart charts the rise and fall of the Great Aussie Esky.

Poetry: The Right Was Wrong
A glimpse of history shows that waterfront workers deserve the high moral ground.

Satire: Heffernan�s Evidence Conclusive: Proves He's An Idiot
The evidence released by Senator Bill Heffernan to substantiate his allegations against Justice Kirby have proved conclusively that the senator is an idiot.

Review: Upstairs, Downstairs
Robert Altman's latest movie Gosford Park is hard yakka no matter what side of the class system you sit on.

N E W S

 Giant Rat Fights Cole Commission

 Dodgy Bosses To Get Life

 Unions Back Rugby World Cup

 Queue Jumper Abbott In Cash Grab

 Refugees Face Bank Imbalance

 Guards Act to Plug Leaks

 Rabbit Fence Leads Reconciliation to Classroom

 Spy Bill Under Fire

 Council Takes Up Discrimination Challenge

 Power Workers To Decide Own Fate

 Thumbs Up for Super Deal

 G-G Warned Off State Schools

 Fee Pressure Builds on Beattie

 Nobel Committee 'Subordinates' Union Rights

 Columbians Level Death Charges

 Call To Blockade Burmese Junta

 Indonesian Threat To Unions

 Activist Notebook

C O L U M N S

The Soapbox
Dealing with Prejudice
Former Liberal senator Chris Puplick did not pull any punches launching a new guide for union reps dealing with discrimination issues.

The Locker Room
The Bigger They Are, The Harder They Fall
Phil Doyle tries to get sport off the front pages and back where it belongs ...

Postcard
Greetings From Lao
In the first in a new series, Union Aid Abroad's Phillip Hazelton, reports from Lao, where he is establishing a vocational training centre.

Cole-Watch
Go West
The Building Industry Royal Commission caravan has rolled into Perth.

Week in Review
Top of the Pops
Johnny Howard and his Masters of Deception kept the beat during a week in which secrecy took over from blatant fibbing as the dark art or choice, leaving the national Hit Parade looking something like this �

L E T T E R S
 Letter to Howard #1
 Letter to Howard #2
 Letter to Howard #3
 Jump Before You're Pushed
WHAT YOU CAN DO
About Workers Online
Latest Issue
Print Latest Issue
Previous Issues
Advanced Search

other LaborNET sites

Labor Council of NSW
Vic Trades Hall Council
IT Workers Alliance
Bosswatch
Unions on LaborNET
Evatt Foundation


Labor for Refugees

BossWatch



The Soapbox

Dealing with Prejudice


Former Liberal senator Chris Puplick did not pull any punches launching a new guide for union reps dealing with discrimination issues.
 

******************

I am sure that most of you are aware of my own political background before I got a real job as President of the Anti-Discrimination Board, and so you will understand the sense of trepidation that I always feel as I pass through the portals of the Labor Council building in that most dreaded of addresses : Sussex Street.

I am even more concerned this evening as tonight is the anniversary of the day in 1556 when Archbishop Thomas Cranmer was sent to the stake for the sin of having recanted his previous opinions. Actually Cranmer recanted twice (or as Churchill once remarked - "it takes little skill to rat but a great deal to re-rat") so perhaps he deserved what he got. For my part, there is no recantation since I have always been committed to the defence of fundamental human rights, and in that respect I hope I share what is also your commitment and the historic commitment of the Trade Union Movement.

This evening I have the pleasure of launching Guidelines for Union Representatives on How to Deal with Workplace Discrimination and Harassment.

The Board has worked closely with Labor Council in the preparation of these guidelines. The guidelines reflect this work and the importance of the Board working closely with industrial parties to work towards the elimination of discrimination and harassment in the workplace.

I do not intend to take you through these important Guidelines in detail this evening, but rather to say something to you about the background from which they have emerged and the issues which confront Unions and which are covered in them.

The Board has taken an active role in industrial relations. Many of you will be familiar with the role that I, as President of the Board, have under the NSW Industrial Relations Act. I have intervened in a number of test cases before the Commission. For example, the Board has worked closely with industrial parties to ensure that the principles for the making or varying of awards and enterprise agreements in this State properly take into account discrimination matters and I made detailed submissions in the relevant test cases before the Commission.

I took an active role in the NSW Industrial Relations Commission's pay equity inquiry and the pay equity principles test case to ensure that women have accessible mechanisms open to them to gain pay equity as is their entitlement under the NSW Industrial Relations Act. We now wait with interest for the outcome of the first case that has been brought by the NSW Public Service Association regarding library and archives workers under that new pay equity principle established by the Commission.

In some instances I have intervened in individual award variation applications. I have intervened when industrial matters have raised discrimination issues that are of broad application and I have taken the view that these issues need to be articulated and awards varied to ensure that discrimination does not occur.

Not all of my interventions have been welcomed by Unions and indeed (with the image of Archbishop Cranmer still in mind) I did find myself in a curious position some months ago with just me on one side (which of course I would say was the side of right and justice) against a Union and Archbishop George Pell on the other.

However I have no doubt that we all share the view that the elimination of discrimination requires a commitment to advancing human rights. Unions are well placed to take a key role, both in working to prevent discrimination, and in assisting to redress it when it occurs. Unions have often sought to protect many fundamental human rights. The right to freedom of association is a key right that unions have sought to protect. In many instances unions have also championed human rights and under the Anti-Discrimination Act unions have sometimes made use of the representative body provisions of the legislation to bring complaints of discrimination on behalf of their members. In other instances unions have assisted members to lodge their own discrimination complaints.

Unfortunately there have also been examples of union members, delegates or officials themselves engaging in discrimination, failing to provide assistance to victims or at best turning a blind eye to discriminatory conduct in the workplace.

There are many cases about hostile workplaces. Consider these.

Example 1

Two women cleaners are expected to clean a crib room with pornographic posters in it. When they complain to the union and management about it things get worse. The posters become more explicit, they are threatened and sexually explicit graffiti appears about them. Rather than the union assisting them with their complaints and acting to improve their working conditions they found that the union took no steps to stop the conduct and by that inaction encouraged the conduct to continue. There was evidence that a union representative had discouraged the women from expressing their concerns. Indeed there was evidence that there was a pornographic poster in the on site union office above the organiser's desk. In this case employer and union were both found liable for the discrimination and substantial damages were awarded against the Union. (Horne v McIntosh v Press Clough Joint Venture)

Example 2

A woman is employed as a packer in a meatworks. At the meatworks all the packers were women and almost all the jobs as boners and slicers, the better paid ones, were occupied by men. The women had to put up with racist insults and sexist rumours. One woman was sexually harassed by her supervisor. She was also prevented from training as a slicer because there was a "shed agreement" that the men would not train women as slicers.

The Human Rights and Equal Opportunity Commission found that she had been discriminated against. The Commission was very critical of the union's role. Here was a highly organised union work force and a union that was happy to take the women's dues. Yet the union did nothing to challenge the racist and sexist behaviour of its members. The woman was seen as a troublemaker and when it finally came to her dismissal the union and management combined to secure her termination. She was not properly represented at the meeting with management that led to her dismissal and the union refused to lodge an appeal against her dismissal on her behalf. (Djokic v Sinclair & Anor)

Under discrimination law it is clear that unions and union representatives can and will be found liable for discriminatory conduct that occurs in the workplace where it can be shown that they have caused, permitted, aided or abetted discrimination or harassment. Unions need to take an active role in ensuring that workplaces are discrimination free and that if allegations of unlawful discrimination are brought to the union's attention they are dealt with appropriately.

The guidelines provide a very useful tool for union representatives to understand discrimination law and how it relates to their role. Each union will no doubt have their own policies about the extent to which matters are deal with by union representatives in the workplace and when it is appropriate to involve paid officials. What is important is that union representatives understand their particular role and are well trained to recognise discriminatory conduct or practices.

To operate well they need to understand what direct discrimination is so that they will know that treating someone less favourably than others because of a particular attribute that is covered by discrimination law is against the law. They need to be able to recognise it when they see it - for example the harassment of an apprentice because they are young or the harassment of a person because they are gay or have a disability.

They also need to understand indirect discrimination. This is critical when considering awards and enterprise agreements or the adoption of policies in the workplace which may appear on the surface to affect everyone equally but have an unequal impact on some groups. One of the leading cases on indirect discrimination was about the application of the "last on first off" rule by BHP. In fact there had been previous discrimination in recruitment practices against women which meant that women were more likely to lose their jobs than men as women had only recently been recruited by BHP. Unions need to ensure that terms and conditions of award and enterprise agreements that they propose or agree to do not have a disparate or unreasonable impact on those protected by discrimination law. Traditionally one of the groups that has lost out in the industrial bargaining process has been women.

The Amery case (Amery and Others v State of NSW), a recent indirect sex discrimination case, provides an example of discrimination that can arise when pay rates are set for casual staff. The issue in that case was that a group of female teachers who were long term casuals did not have the access to the full incremental salary scale - they could only go to equivalent of step 8 on the permanent scale, permanent teachers could go to Step 13. All but two of those complaining had given up permanent teaching positions to care for children and their families. (Note - This decision is now on appeal.)

A close examination of some industrial instruments also raises concerns for real equality of other groups - people of some racial backgrounds, people of particular ages, people who are gay or lesbian and people with some disabilities.

There are many instances where union representatives are consulted on workplace policies and again it is critical that they are able to point out any discriminatory implications.

Victimisation is no stranger to unions. I am sure that you are all well aware that is against the law to victimise people because they have made a complaint or raised allegations about discrimination or harassment. It is important for workers wanting to raise allegations about discrimination to know that victimisation is unlawful. It is also important for union representatives to also know that they have some protection under the law if they are victimised because they raise allegations of discrimination in good faith - even if in the end they turn out not to be substantiated.

Unions must also be mindful of the stage at which they get involved in allegations of discrimination. In some instances the Board hears of examples where it is union members themselves that are responsible for the discriminatory treatment that is alleged to have happened. The union has been aware of the conduct and done little to raise the issue or protect people in the workplace and then becomes involved if management decides to intervene to stop the conduct.

The union may then end up coming in to represent the person alleged to have done the wrong thing. We all appreciate that it is important that people have someone to represent them when there are allegations against them, particularly if disciplinary action is likely. It is important that any disciplinary procedure is fair and unions have a role to play in this.

That does not excuse unions sitting by until the damage is done, someone has made a complaint and management acts on it. This is tantamount to condoning the conduct. Take for example treatment such as that metered out to the young council employee that came up in the Paris v Bankstown City Council case. Here it was clear that many employees knew of the conduct that the young man had to endure - serious and on going harassment such as pantsing and being tied to a tree and assaulted. We would prefer to see the union getting involved in raising the allegations with management in a proactive way rather than coming in at the end when a member has contacted them to represent them in disciplinary proceedings.

In many instances unions do play a pro active role in raising issues in the workplace and ensuring that they are dealt with properly. They exist to protect worker's industrial and employment rights. An important part of this is advocating for human rights.

I commend the guidelines to you as a practical tool to assist you in preventing discrimination happening and for dealing with it if it does occur. I thank the Labor Council for providing the Board with such valuable input to the guidelines and for steps being taken to ensure that union representatives will have clear guidance on how to deal with workplace discrimination and harassment.

It is my great pleasure to launch these guidelines and the Board looks forward to continuing to work with Labor Council and unions on the elimination of discrimination and the promotion of human rights.

Chris Puplick is President of the Anti-Discrimination Board of New South Wales


------

*   View entire issue - print all of the articles!

*   Issue 129 contents



email workers to a friend latest breaking news from labornet


Search All Issues | Latest Issue | Previous Issues | Print Latest Issue

© 1999-2002 Workers Online
Workers Online is a resource for the Labour movement
provided by the Labor Council of NSW
URL: http://workers.labor.net.au/129/a_guestreporter_puplick.html
Last Modified: 15 Nov 2005

Powered by APT Solutions
Labor Council of NSW Workers Online
LaborNET