Page 4102 - Week 10 - Tuesday, 20 September 2011
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My amendment would ensure that the illegitimate reason merely has to have played some role in the conduct. It does not have to have been the dominant reason or a substantial reason; it just has to have been a reason. This change will strengthen the protections against discrimination, and it is very important, of course, that these anti-discrimination provisions are practical and effective. The changes will make sense. An illegitimate discriminatory reason should not play any part in the mind of a decision maker. It should not have to be the dominant reason or a substantial reason.
In its submission on the bill the Australian Council of Trade Unions explained that employers often act with mixed motives. It said:
We are concerned about the case where an employee makes a safety complaint; six months later the employer selects them for redundancy. The redundancy is overwhelmingly motivated by legitimate business objectives, but a small factor in the decision (say 10%) is the desire to punish the complainant. Under the model Bill, the employer will not be liable for a civil penalty if they can prove that the illegitimate reason was not a ‘substantial’ reason for the decision. However, we think that the Parliament should penalise decisions in which the illegitimate motive plays any real role … The parliament should not tolerate employers bringing illegitimate reasons to bear in making decisions affecting workers.
A further example can be found in our own anti-discrimination legislation. Section 4A of the ACT Discrimination Act says the following:
In this Act, a reference to doing an act because of a particular matter includes a reference to doing an act because of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
Our Discrimination Act explicitly ensures that illegitimate reasons such as sex, race, disability or age only had to be one reason for a discriminatory act; they do not have to be the dominant or substantial reason, yet this new harmonised law imposes a dominant or substantial reason test on discrimination against health and safety representatives.
My amendment is also supported by the federal Senate’s Education, Employment and Workplace Relations Committee. I am sure members will have seen the committee’s report on the legislation. The first recommendation of that committee is to remove the substantial and dominant reason tests from the bill. The committee said that such an amendment would ensure consistency with the Fair Work Act and ensure appropriate protections are in place for health and safety representatives. I point out that this recommendation was made by the Labor and Greens majority of the Senate committee. The chair of the committee is a Labor senator.
Lastly, I note the argument that a dominant purpose test is needed because it applies to a criminal offence and there is a difference between criminal and civil offences. It may also be argued that a person facing discrimination could resort to the Fair Work Act, which does not have a dominant or substantial purpose test. I have one or two
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