Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

Thank you, Senator Xenophon, for your question. If you read it through, it says that for the purposes of this act a person discriminates against another person on the ground of the aggrieved person's family responsibilities if the discriminator 'imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging a person with family responsibilities'. That is true. You have to put it in the context of the whole section, which does have both a reasonableness test together with the reversal of the onus of proof. In other words, if you read 7A(1), it says:

For the purposes of this act … if, by reason of—

and it goes through (a), (b) and (c) and then (2), because this section 7A is reflected in a range of pieces of state and territory legislation dealing with family responsibilities. But the broad issue around this section itself, which is an indirect discrimination provision which is also found in similar terms in other legislation, is about dealing with circumstances where there is indirect discrimination. If you removed 7A(1) and (2) completely—

Senator Brandis interjecting—

If you removed the provision you would then leave a hole in the ability of the legislation to deal with indirect discrimination. That is the effect of what you would do. I know Senator Brandis interjects. I listened to him in silence, notwithstanding what I would have regarded as some pretty spurious straw-man reasoning together with some pretty wild Chicken Little arguments. Nonetheless, I will not be drawn. The provisions have been drafted very carefully by competent draftspersons to ensure that we do capture the issues around indirect discrimination, so not only those ones which are itemised in 7A through to 'if, by reason of: (a), (b) and (c)' but also those in (2) for the purposes of this act. Ultimately, the argument around this issue that employers will not be able to get on with their daily work is, I think, falsely premised.

This same argument that 'the sky will fall down' was articulated way back in 1984 when the legislation dealing with discrim­ination first came in, and of course the sky did not fall in and employers managed competently to address these issues. The Australian Human Rights Commission has managed quite competently over that long period to deal with areas where both can be right, or both can be wrong, or one is wrong and one is right, as between the employer and the employee in these issues. Yes, there are through the course of events circumstances which are thrown up where employees might feel discriminated against, either indirectly or directly, and they may find themselves pursuing an issue within the Australian Human Rights Commission. But common sense, I have found over the last 20 years, has prevailed in these arguments. Of course there are employers who quite rightly do believe that the actions they take are nondiscriminatory, that they are bastions of good employers and their actions, they believe wholeheartedly, are nondiscrim­inatory either in truth or in effect. But on a clear and close examination, objectively by another, they do discriminate, maybe indirectly, maybe directly. That is why we do have provisions in legislation like this for the purposes of dealing with both direct discrimination and indirect discrimination and why (2) deals with the effect of disadvantaging persons with family respon­sibilities.

These are sensible amendments. We have spent a considerable amount of time ventilating them, but I will take a couple more minutes on this. I have now had an opportunity this morning to go back and reapprise myself of the Legal and Constitutional Affairs Legislation Committee report. The committee ultimately recom­mended that this bill be passed and it made some suggestions. I do recognise that the coalition took a different course. The Liberal senators recommended that the bill be amended, and we are now dealing in part with some of their recommendations. So there is a genuine disagreement that is again being ventilated here. That is not to take away either of the arguments, but on balance the government believes firmly that the provisions that it has put up and that the Senate committee by a majority recom­mended, should be passed. The government continues to believe that the provisions are reasonable and will operate reasonably in the workplace and between employers and employees, and will not have the disastrous effects of causing a business to cease or that people will only employ male boilermakers in the workplace. With all of those things I think we are really getting beyond what I would call rational debate in the Senate. I think the arguments, although well pre­sented, miss the point of the whole piece. This is about ensuring that we do capture indirect discrimination in this area, and the drafters have achieved that in 7A(1) and 7A(2). We as adults can disagree. On this basis, Senator Brandis clearly disagrees that we have captured it accurately and correctly. I do not share his view and I have listened intently to the arguments he has put forward. They have not persuaded me, although I think Senator Brandis would have expected that they were not going to persuade me in any event. When I look at the provisions themselves, for my own sake I still remain unconvinced that his arguments have any merit.

To put it another way, it seems to be that these provisions would operate in a commonsense way in any event. That is how legislation has operated in this area for a very long time and it continues to operate that way. I would encourage the opposition to understand that pointing to unbelievable circumstances is a device that we all use occasionally in this place. It does provide colour and movement to use extreme examples, but the practicality of it is that these are sensible amendments, they will work and they will operate to ensure that family responsibilities will be taken into account and that employers will not discriminate, either indirectly or directly, against someone who has family responsibilities. It is a matter that is currently provided for in ensuring that we do have balanced rights for families to assist them to balance their work and family respon­sibilities. We do want to accommodate flexibility where it can be accommodated within the workforce. Employers should be able to flexibly meet those requirements.

Equally, we recognise the pressure on small businesses themselves, particularly small-business owners. The issues raised by Senator Barnett were apposite. We do have to ensure that small business can get on with the work that they do well and the bill does not require businesses to make unreasonable arrangements. In practical terms, it will not require employers to make themselves aware of all circumstances of their employees because an employee could hardly claim to have been refused flexible arrangements without first having discussed these with their employer.

I find from my interactions with small business that they regard their employees as part of the business, they talk to them daily, they discuss many of the issues we are talking about and they work around all these issues I have described. Small business generally knows their employees quite personally. Where you have one, two, three or four employees in the workplace, it would be unusual for employers not to know them personally or not to know their personal circumstances. But it may happen.

Many of the arguments that are being progressed today for some hour are misplaced. We do not support Senator Brandis's amendments. We will continue to press for the amendments which have been drafted. I have probably now provoked further discussion on this but, in answering your original question, we do not think it has the effect you have outlined. We think it will act reasonably.