Australian Journal of Labour Law (2017) Volume 30 Part 3
Employment discrimination law: Moving towards substantive equality at work? – by Anna Chapman and Beth Gaze
The four papers in this special issue of the Journal by Chapman, Gaze and Orifici, O’Cinneide, Blackham and Oppenheimer and Afrouzi were developed following a workshop held at the University of Melbourne in July 2016, convened as part of a research project funded by the Australian Research Council.1 The project sought to evaluate the influence of the adverse action provisions of the General Protections in Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) in advancing substantive equality in the workplace through setting up a more comprehensive protection against discrimination in labour law. The purpose of the workshop was to present the findings of the research project, and to engage with critique and commentary by Australian as well as international anti-discrimination and labour law academics and practitioners in the field.
Substantive equality at work: Still elusive under Australia’s Fair Work Act – by Anna Chapman, Beth Gaze and Adriana Orifici
In 2009, protections were enacted for the first time in the labour law statute that enable workers to bring a claim alleging discrimination in their employment beyond the context of termination of employment. Those provisions are positioned as part of a set of General Protections contained in Part 3-1 of the Fair Work Act 2009 (Cth). They were enacted to operate alongside anti-discrimination law, which has been in existence in Australia for some 40 years. This article reports on a research project that has examined the development of the Part 3-1 protections, and their interactions with anti-discrimination law, to address the question of whether the new protections enacted with the 2009 labour law statute have furthered substantive equality at work. Due to a number of matters explored in the article, the authors conclude that such equality remains elusive in Australia.
Values, rights and Brexit — Lessons to be learnt from the slow evolution of United Kingdom discrimination law — by Colm O’Cinneide
This article sets out to provide an overview of the evolution of United Kingdom discrimination law over the last 50 years, with particular reference to how this process has played out in the employment sphere. In so doing, it makes the argument that the influence of European law — and especially the purposive and rights-centred approach adopted by the Court of Justice of the European Union to the interpretation of EU equality legislation — has exercised a transformative effect on UK law in this context. In particular, it has played a key role in countering the influence of certain ‘drag factors’, which might otherwise have stunted the development and functioning of UK discrimination law. This ‘leavening’ influence of European law may survive the rupturing impact of Brexit, in part because the European approach has to some extent been internalised within UK law. The article concludes by suggesting that there are some tentative lessons to be learnt from this experience, which may be of (possible) value to an Australian audience.
Employment discrimination law in the United Kingdom: Achieving substantive equality at work? — by Alysia Blackham
Workplace discrimination laws are seen as a key tool to achieve substantive equality at work. This article maps the discrimination law landscape in the United Kingdom, to evaluate the extent to which it is capable of achieving substantive equality at work. This is assessed across four areas: the structure of the law, the domestic view of the law, remedies and enforcement, and the role and use of positive action. I argue that, while the UK system offers glimmers of substantive equality at work, which could be advanced via employment discrimination law, these glimmers are being increasingly repressed by government reforms. While existing statutes offer a promising framework for pursuing individual claims, they are not supported by adequate enforcement mechanisms. Thus, substantive equality at work remains an elusive goal in the UK.
Reflections on choosing an avenue of redress for discrimination at work in the United States — by David B Oppenheimer and Amin Ebrahimi Afrouzi
This comment reflects upon the diverse range of potential paths to remedy a workplace discrimination claim, at the federal as well as state levels, in the United States. Some of these paths are alternatives, whilst others can be used cumulatively rather than exclusively. This comment outlines the various options available to the American worker, and argues that although the range appears to be wide and sufficient, workers are not likely to be well informed of the options available to them, and as a result may not be in a good position to make the best choice of avenue. In order to address this problem, the authors argue that the various administrative agencies that enforce US anti-discrimination laws ought to cross-train their intake workers so that they are able to fully advise claimants on the alternative options open to them, so that their choice is made on a better informed basis.
Adverse action protection for the right to complain or inquire in s 341 of the Fair Work Act — Elizabeth Shi
This article addresses a gap in the literature on adverse action laws by discussing the way the courts have interpreted the provisions which protect the right to complain or inquire, outlining and analysing case law on the causal requirement and on the scope of the right to complain or inquire. The article concludes that the courts have tended to place an unduly heavy focus on the employer’s direct evidence of its subjective reasons for taking adverse action against an employee. With respect to the scope of the right to complain or inquire, the most contentious issue appears to be whether a complaint or inquiry must be based in an entitlement or right created by a legal instrument. The article argues that no such requirement should be read into the legislation.