Bills Digest no. 64 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Jaan Murphy
Law and Bills Digest Section
10 December 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of the Government
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Concluding comments
Date introduced: 19
October 2015
House: House of
Representatives
Private Member’s Bill
introduced by: George Christensen MP
Commencement: On the
day after the Act receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The Fair Work Amendment (Prohibiting Discrimination Based
On Location) Bill 2015 (the Bill) is a Private Member’s Bill that will amend
the Fair Work Act 2009 (the FWA) to prohibit employers from
discriminating against prospective employees based upon their geographical
location.[1]
The Members who introduced and seconded the Bill argue
that it is a measure that will ensure that ‘locals can never be specifically
excluded’ from applying for jobs near where they live by making it ‘illegal for
companies to lock people out of jobs based on their home location’.[2]
It is argued that the Bill will ‘ensure that Central Queenslanders can apply
for Central Queensland jobs in our coalmining sector’ without facing discrimination
in favour of fly-in-fly-out (FIFO) workers whilst still allowing ‘the
flexibility to use FIFO where needed’ and thus ensuring that when the resource
industry recovers FIFO workers can still be recruited.[3]
The increasing use of fly-in-fly-out workers (FIFO) in the resources sector has
been well documented.[4]
One controversial aspect of the increased usage of FIFO workforces on resources projects and in mines has been the preferential
recruitment of employees who live near certain airports over those who do not. An
extract from a job advertisement below highlights the type of conduct this Bill
is aimed at preventing:
Source: Queensland Parliament, Infrastructure,
Planning and Natural Resources Committee, Inquiry
into fly-in, fly-out and other long distance commuting work practices in
regional Queensland, 9, 55th Parliament, October 2015, p. 97.
Put simply, some employers are choosing only to employ
workers on a FIFO basis, thus excluding potential employees who live near resources
projects or mines who could drive or take public transport to the work site. The
Bill seeks to end situations where locally based potential employees cannot
apply for advertised jobs by prohibiting ‘discriminatory employment practices’ such
as requiring a potential employee to ‘live within 100 km of specified airports’.[5]
At the time of writing, the Bill had not been referred to
any committee for inquiry and report.
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Bill.[6]
It appears that the Government has not adopted a formal
policy position in relation to the specific measure proposed by the Bill.
Despite this, the Government has previously indicated support for 100 per cent
FIFO workforces in certain circumstances and introduced legislation that will
curtail a tax concession currently available to FIFO workers (the Zone Tax
Offset).[7]
The Government, in response to a recommendation to reform Fringe Benefits Tax
laws to remove the exemptions for:
- FIFO
work camps that are co-located with regional towns and
- travel
to and from the workplace for operational phases of regional mining projects
has indicated that it will examine those (and other)
existing taxation arrangements as part of the ‘upcoming White Paper on the
Reform of Australia’s Tax System’.[8]
Whilst the Government is open to reviewing various tax
concessions that arguably incentivise FIFO work patterns, it has not
demonstrated any intention to restrict the ability of employers to choose the
composition of their workforce (in relation to the proportion of FIFO and local
employees).[9]
As such, the current policy towards the resource
companies’ recruitment policies is perhaps best described as ‘non-interventionist’
and hence Government support for the Bill appears unlikely.
Whilst no formal policy position in relation to the Bill
appears to have been adopted at the time of writing, at its 47th National Conference,
the ALP noted that the ‘growing preference for itinerant over residential
workforces’ was leading to ‘discrimination against local workers in regional
areas’.[10]
As a result, the ALP adopted a formal policy to:
... work with State and where applicable Local Governments to
establish a regulatory framework that... ensures FIFO work arrangements are
limited to genuinely remote and temporary operations... [11]
Whilst the above policy does not foreshadow legislation
being implemented at a Commonwealth level, the desired outcomes of the above
underlying policy are not necessarily incompatible with the measure proposed by
the Bill.
Whilst the Greens do not appear to have adopted a formal
policy position in relation to the Bill, they have previously issued policy documents
stating that they would ‘work to ensure that all mining activity... delivers long
and short term benefits to local communities and the wider Australian
community’ and would ‘oppose mining activity that is detrimental to ... the
community’.[12]
Whilst the above policy does not foreshadow specific
measures of the type proposed by the Bill, it does not appear incompatible with
the measure proposed by the Bill.
As at the time of writing no Commonwealth Parliamentary
committee inquiry into the Bill has been conducted, the position of major
interest groups can only be inferred from their submissions to inquiries
conducted by the Commonwealth and state parliaments into issues posed by FIFO
work practices in general. Most the comments below are drawn from the recently
concluded Queensland Parliament’s Infrastructure, Planning and Natural
Resources Committee Inquiry into FIFO and other long distance commuting work
practices in regional Queensland (the Queensland Inquiry).[13]
Industry stakeholders
Most industry stakeholders are opposed to any moves to
restrict their ability to hire workers on a FIFO-basis. For example, in its
submission to a Queensland Inquiry, Rio Tinto stated:
Any move to arbitrarily limit FIFO / DIDO... would seriously
impact the sector’s ability to meet its labour needs and in some cases threaten
project viability.[14]
The Association of Mining and Exploration Companies (AMEC)
also expressed opposition to any moves to either incentivise local employment
or to restrict the deployment of FIFO workers, noting:
It must also be considered that there would be significant
costs imposed upon a local community should FIFO not be employed as a workplace
strategy. More housing, education, employment (for family members not employed
in the mining project), childcare and infrastructure upgrades would be
necessary...
AMEC suggests that FIFO will be necessary as part of a
suite of employment practices throughout Queensland dependent upon the
remoteness of the project, the availability of appropriately skilled locals,
and costs to the local community to support the project.
Due to the cyclical nature of mining and the relatively short
time-frame for construction projects, it is impractical to suggest a company
could commit to an “all-local” workforce or a local town could justify
outlaying capital to support short term infrastructure... FIFO workforces are
often a more expensive option, but are necessary due to the lack of a local,
appropriately-experienced and skilled workforce. In this situation, to
incentivise other workforce practices is futile and to penalise companies that
must rely on FIFO is structurally unfair.[15]
(emphasis added)
The Australian Mines and Metals Association (AMMA)
likewise expressed opposition to any moves to restrict employers ability to use
FIFO workers, stating that where a mine was more than 80 kilometres (km) away
from a community ‘operating with a FIFO workforce is the only legitimate and
safe way their workforce can arrive at work and go home safely from work’ and
hence if ‘FIFO was restricted or banned these mines would close down’.[16]
Trade unions
A number of trade unions expressed concern about aspects of
the ability of companies to hire workers on a FIFO basis. For example, the
Australian Workers Union (AWU) expressed the view that resources sector
companies should be ‘encouraged to invest in local communities’ by contributing
to infrastructure development, investment and the expansion of skills in the
relevant communities.[17]
AWU also stated:
... there should be no barriers for local people who are
qualified from obtaining employment in mines or their construction. Mining
operators, whether new or well established, should place a particular emphasis
on supporting local youth and indigenous workers through apprenticeship and
traineeship programs.[18]
Similarly, the Electrical Trades Union of Employees Queensland
(ETU) noted that people living near mines or resource projects often:
... suffer from “post code discrimination” where employers
refuse to employ workers from the local area, despite them having the necessary
qualifications and experience, increasing unemployment and limiting job
opportunities for young local residents, and the impact of the economic cycle
of the resources sector.[19]
However, the ETU also acknowledged the role that FIFO
workers can play, stating that ‘employers should employ both local and FIFO employees,
based on their ability to perform the work required, rather than the post code
in which they live’ and that it was not ‘the Union’s intention to see existing workers
removed from employment’.[20]
As a result, the ETU recommends that employers should be required to ‘employ a
proportion of local, resident workers in addition to non-resident workers.’[21]
The Australian Manufacturing Workers’ Union (AMWU) expressed a similar view,
stating that whilst FIFO work practices:
... may provide employment opportunities for workers in
metropolitan areas, 100% FIFO work practices come at the expense of local
workers in regional areas. It is the AMWU’s view that 100% FIFO practice is
unsupportive of individuals, families and regional communities. Efforts should
be made to curb this practice to restore balance and choice to workers and a
fair opportunity for regional communities to remain sustainable.[22]
The Queensland Council of Unions (QCU) noted that FIFO was
an important part of the overall labour market, but also made the point:
The union movement does not advocate the eradication of FIFO
and other long distance commuting work practices as they clearly have their
place in a modern setting... There are also some projects that could only be serviced
by such arrangements and the complete removal of FIFO would be absurd... The
complete removal of FIFO would be as absurd as imposing a policy of 100% FIFO
when there is a ready, willing and able workforce at the disposal of the
companies constructing or operating the mine.[23]
The Construction, Forestry, Mining and Energy Union’s
(CFMEU) recommendations to the Queensland Inquiry are broadly reflective of the
views noted above. The CFMEU recommended that compulsory 100% FIFO operations be
discontinued and that discrimination against local workers in favour of FIFO
workers be stopped.[24]
Local Councils
The Local Government Association of Queensland (LGAQ) (the
peak body for local government in Queensland) is opposed to 100% FIFO
developments in ‘established resource communities’ because they:
- lead
to discrimination against workers outside of identified FIFO hubs for
employment opportunities
- negatively
impact the social cohesion of local communities and
- diminish
the transfer of economic benefits to local and regional communities.[25]
However, the LGAQ notes:
whilst the LGAQ’s policy position on 100 percent FIFO is
clear, what might represent a suitable level of FIFO / non‑resident
workforce versus local workforce has not been generally well established. This
is due to FIFO being seen to have both positive and negative impacts on local
governments and their communities.[26]
A number of local councils in Queensland expressed similar
sentiments.[27]
However, not all local governments oppose 100% FIFO workforces. For example,
the Cairns Regional Council (CRC) noting that any restriction of ‘FIFO work
practices will have a significant impact on the Cairns economy’ and stating
that it would ‘encourage the Queensland Parliament to consider not imposing any
restrictions on FIFO work practices’.[28]
Other groups
The Australian Christian Lobby (ACL) noted that due to the
demand for an exclusively FIFO workforce at certain mines and projects that ‘in
some parts of Queensland... local workers can only be employed if they move away
and fly in with everyone else’ and concluded that such practices were ‘destroying
families and communities’.[29]
In its report on the Queensland Inquiry, the Queensland
Parliament’s Infrastructure, Planning and Natural Resources Committee stated:
A fundamental recommendation of the committee’s inquiry is
for the government to consider amending the Anti‑Discrimination Act
1991 [QLD] to include location as a prohibited ground of discrimination.
The committee was of the view that this is one of the ways to facilitate choice
for local people without making retrospective amendments and creating sovereign
risk.[30]
The Explanatory Memorandum to the Bill states that the Bill
will not have any financial impact on the Commonwealth.[31]
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), Mr Christensen, the Member who
introduced the Bill, has assessed the Bill’s compatibility with the human
rights and freedoms recognised or declared in the international instruments
listed in section 3 of that Act, and considers that the Bill is compatible.[32]
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[33]
As noted earlier in this Digest, the purpose of the Bill
is to prohibit employers from discriminating against prospective employees
based upon their geographical location. In short it aims to prohibit ‘postcode
discrimination’, that is, practices such as employers:
- recruiting
exclusively (or in a significantly biased way) from specific geographical
locations and postcodes or
- refusing
to consider applicants from outside specific geographical locations and
postcodes.
Whilst the Bill is clearly aimed at reducing the prevalence
of mining and resource companies exclusively recruiting FIFO workers located
near certain airports and refusing to consider applications from workers who
could drive to the worksite, it will be applicable to other circumstances and
industries. This is because it seeks to extend the FWA’s ‘general
protections’ regime to include discrimination on the basis of geographical
location.
To give context to the proposed changes, the issues it
raises, potential defences and the likelihood of the Bill achieving its policy
objective, a brief overview of the FWA’s general protection regime is
provided below.
Overview of the Fair Work Act’s ‘general
protections’ regime
Part 3-1 of Chapter 3 of the FWA establishes the
‘general protections’ regime.[34]
In short, the FWA protects certain rights, which, relevantly to the
Bill, includes the right to be free from unlawful discrimination. It does so by
prohibiting a person from taking ‘adverse action’ against another person (amongst
other things):
- because
the other person has a ‘workplace right’[35]
or
- because
of the person’s race, colour, sex, sexual orientation, age, physical or mental
disability, marital status, family or carer’s responsibilities, pregnancy,
religion, political opinion, national extraction or social origin.[36]
The protection in relation a ‘workplace right’ is one of
general application, and encompasses the workplace right to be free from
unlawful discrimination.[37]
However, the FWA also contains a specific protection in relation to adverse
action taken because of unlawful discrimination.[38]
It is that provision that the Bill is modelled on.[39]
Both however, are triggered by ‘adverse action’ being taken.
What is adverse action?
Section 342 of the FWA sets out circumstances in
which a person takes adverse action against another person. Relevantly to the
measure proposed by the Bill, this includes circumstances related to employers
dealing with prospective employees (that is, job applicants). Subsection 342(1)
provides that a person takes adverse action when they:
- refuse
to employ the person or
- discriminate
against the prospective employee in the terms and conditions on which
the prospective employer offers to employee the prospective employee.[40]
However, action authorised by a Commonwealth or prescribed
state or territory law is not adverse action.[41]
The prohibition against discrimination
and adverse action
Section 351 of the FWA, on which the Bill is
modelled, prohibits an employer from taking adverse action against an employee
on the basis of the protected attributes noted earlier.[42]
This includes circumstances where a prospective employer refuses to hire a
person or discriminates against the prospective employee in the terms and
conditions which are offered to the prospective employee because of a
protected attribute. However, subsection 351(2) provides that an employer does
not take adverse action where the action taken:
- is
not unlawful under any anti-discrimination law in force in the place where the
action took place (that is, under relevant Commonwealth, state or territory
laws) or
- was
taken because of the inherent requirements of the position concerned.
As the Bill also includes the ‘inherent requirements’
defence, it is considered later in this Digest.
Reverse onus of proof
Section 361 of the FWA provides that where a person
brings an application for adverse action under Part 3-1, it must be presumed
that the action was taken for the alleged prohibited reason. The presumption
arises where the applicant establishes facts that provide the basis for the
alleged prohibited conduct by the respondent.[43]
This presumption can, of course, be displaced by evidence
led by the respondent (for example, that a person was not hired because they
lacked suitable experience, not because they lived outside of a particular
postcode near a specific airport). It been noted that, from the majority of
cases dealing with discrimination, a reverse onus of proof does not appear to
be a panacea for easily proving allegations.[44]
If the Bill is passed, then the reverse onus of proof will
apply to contraventions of the prohibition against taking adverse action
against an employee or prospective employee because of where they live. As a
result, an employer would be required to lead evidence to prove that they
refused to hire a prospective employee on some other grounds other than where
the person lived.
An employee who believes they have been subjected to
adverse action can commence proceedings by lodging an application with the Fair
Work Commission (FWC) or a court (in certain circumstances).[45]
The diagram below outlines how non-dismissal disputes are handled by the FWC
and Court.
Figure 1: general protections claims dispute processes
Source: Fair Work Commission (FWC), Benchbook:
general protections, FWC, 1 July 2014, p. 131, accessed 8 December
2015.
The FWC then notifies both parties that it can only deal
with the dispute if both parties agree. The parties are also advised that if
they do not agree to the Commission having a conference, the applicant has the
option of taking the dispute directly to the court. If the parties to the
dispute agree to participate, the FWC may deal with a non-dismissal dispute by
conference.[46]
If not, the applicant can commence court proceedings.[47]
If the matter is heard before the FWC and resolved during
the conference, the parties will enter into a settlement agreement that reflects
their agreed outcome. For example, a settlement agreement may contain details
of compensation or steps to be taken, as well as issues regarding privacy or
non-disparagement terms.
If the matter is heard before a court, the Federal Court or
the Federal Circuit Court may make any order the court considers appropriate if
satisfied that a person took adverse action against a person with one of the
protected attributes discussed above, because of that protected attribute or
because they had or exercised a workplace right (for example, where a
prospective employer refused to hire a prospective employee because of their
religion). Orders the Federal Court or Federal Circuit Court may make include
an order:
- granting
an injunction, or interim injunction, to prevent, stop or remedy the effects of
a contravention
- awarding
compensation for loss that a person has suffered because of the contravention
(including interest)
- imposing
a pecuniary penalty to be paid to the Commonwealth, a particular organisation
or a particular person (for example, the applicant) and
- requiring
a person to pay costs incurred by another party to the proceedings.[48]
In summary, where an adverse action claim is successful, a
range of remedies are available including injunctions, compensation, the
imposition of pecuniary penalties and recovering costs.
Defence: inherent requirements of
the job
Currently section 351 of the FWA, on which proposed
section 351A is modelled, provides that an action taken because of the inherent
requirements of the position concerned is not adverse action. It is beyond
the scope of this digest to fully explore how the phrase ‘inherent
requirements’ has been interpreted by courts in the employment law context.[49]
However, some observations relevant to the measure proposed by the Bill
include:
- the
phrase ‘inherent requirements’ will usually be given its natural and ordinary
meaning but
- the
interpretation of ‘inherent requirements’ in cases decided under disability and
sex discrimination legislation may be useful in some cases[50]
therefore
- whether
a requirement is inherent to a position must be answered by reference to the
terms of the contract and the function which the employee performs for the
employer, by reference to that employer.[51]
As a result, it would appear that the training, qualifications,
experience, ability to meet certain physical demands and (possibly) the ability
to comply with a particular roster may all be ‘inherent requirements’ of a
position.
What is proposed by the Bill
Proposed section 351A provides:
- an
employer must not take adverse action against a person who is an employee, or
prospective employee, of the employer because of where the person lives but
- the
prohibition does not apply to action that is taken because of the
inherent requirements of the particular position concerned.
In short, the Bill proposes to prohibit discrimination
based on where a person lives, unless the location where a person lives is an
inherent requirement of the particular position.
Will it work?
If passed, it may dissuade employers from advertising in the
manner complained off. However, there are two issues that suggest that the Bill
may not be as effective in preventing forms of ‘postcode discrimination’ other
than openly advertising for applicants near specific airports. The first
relates to the ‘inherent requirements’ defence, the second to how courts have
‘narrowly’ interpreted the FWA’s general protections provisions.
Is living near a mine an inherent
requirement of the role?
The first issue that suggests that the measure proposed by
the Bill may not be entirely effective in preventing ‘postcode discrimination’
is the inherent requirement defence.
Whilst case law on the issue is not determinative, it is
clear that the ability to comply with a particular roster (for example, one
with 12-hour shifts) may, in some circumstances, be viewed by a court as an
inherent requirement of a position. If so, this has direct implications for the
measure proposed by the Bill, and may undermine the intended policy objective
of eliminating ‘postcode discrimination’.
A House of Representatives Standing Committee on Regional
Australia’s (the Committee) report on FIFO work practices noted that 12-hour
shifts are a common feature of the resources industry. It also noted that such
shifts expose employees who commute a significant distance to and from a
workplace to an increased risk of being in a motor vehicle accident, due to
driver fatigue.[52]
The Committee noted:
Employers and accommodation providers were quick to condemn
fatigued driving because of the related risk between fatigue and traffic
accidents.[53]
Given that WHS laws impose an obligation on employers to
ensure a safe working environment, it could be argued that knowingly hiring
employees who must engage in significant commutes prior to and after 12 hours
shifts is unacceptable. This point was made by the AMMA when they noted that where
a workplace was more than 80 km away from a community ‘operating with a FIFO
workforce is the only legitimate and safe way their workforce can arrive at
work and go home safely from work’.[54]
In addition, the Maranoa Regional Council noted:
... the structure of FIFO work schedules also impact on workers
who reside close to the gas fields. The two weeks on, two weeks off roster does
not promote relocation to regional areas. Many locals employed in the CSG
sector wish to return to their homes post shift, however due to the roster are
not allowed.[55]
(emphasis added)
It would appear that, given the use of 12 hour shifts, long
commutes and WHS obligations imposed on employers that it is at least arguable
that living in accommodation provided by the employer near the worksite is an
‘inherent requirement’ of some positions. Put another way, it may be argued
that being able to work on a FIFO basis is an inherent requirement for some
positions where work is conducted on remote sites.
Whilst this would be determined on a case-by-case basis, taking
into account how far the person had to travel to their home, it nonetheless
appears at the very least that companies that want to use a 100 per cent FIFO
workforce may be able to argue that due to the use of 12-hours shifts and the
need to maintain a safe working environment, being employed on a FIFO basis and
living near a particular airport is an inherent requirement of the position.
Clearly, this would undermine the effectiveness of the measure proposed by the
Bill in reducing or eliminating ‘postcode discrimination’, at least in some
situations.
The ‘narrow’ interpretation of the
general protection provisions
The second issue that suggests that the measure proposed by
the Bill may not be entirely effective in preventing ‘postcode discrimination’
is how the general protections provision of the FWA has been interpreted
by the courts.
It would appear that on the current interpretation, the
provision may well be ineffective in circumstances where an employer convinces
a court that the reason for refusing to employ a person living outside a certain
area was motivated by non-prohibited reasons. This is because in most general
protections cases the central question to be determined is whether adverse
action was taken ‘because of’ a prohibited reason.[56]
Importantly, proposed subsection 351A(1) also uses the phrase ‘because
of’. As a result of a number of recent court cases, the test that is currently
applied can be summarised as follows:
- the
court will determine the reasons of the employer's decision-maker for taking the
adverse action
- this
is a question of fact, answered by what actually (consciously) motivated the
decision-maker (as determined by the evidence presented before the court)
- if
the evidence given by the decision-maker is persuasive and properly tested
against evidence relating to the surrounding circumstances (for consistency and
reliability), then the court will accept the decision-maker’s evidence that
they did not act for an unlawful reason in breach of Part 3-1 of the FWA
and
- therefore
adverse action will fail.[57]
These decisions have attracted criticism from members of
the judiciary, academics and trade unions. For example, one legal academic
noted as a result of the way in which the provisions are interpreted by courts
‘the general protections do not seem to interfere much at all with managerial
prerogative.’[58]
Justice Bromberg, in CFMEU v Endeavour Coal Pty Ltd, also noted:
To construe the prohibition on a person taking adverse action
against another because the other person has exercised a workplace right as not
including the taking of adverse action because of the substance or
content of the right or the effect produced in its exercise, is in my
view to denude the intended protection of its practical utility.[59]
He also stated that protections offered by Part 3-1 of the
FWA would be ‘largely illusory’ if ‘the substance, content or effect of
that right’ when ‘put into practice’ provided an ‘innocent reason for the
taking of adverse action’.[60]
A similar point was made by the Australian Council of Trade Unions:
The current state of the law on general protections cases
means that the protections that Parliament envisaged as an integral aspect of
the industrial relations framework in this country, have been effectively read-down
by the Courts.[61]
The criticism of how the general protections provisions
are currently interpreted is perhaps best summed up by comments made by
Professor Joellen Riley to Workforce:
... if our courts seriously believe that an employer can sack someone
for protesting with a ‘scab’ sign while denying the sacking was ‘because’ the
worker was taking industrial action, then they will believe pretty well
anything.[62]
It is worth noting however, that these criticisms are not
universally accepted. For example, the review of the FWA commissioned by
the previous government (and prior to key High Court decisions being handed
down) stated:
The Panel prefers the approach... [that] employers would have
access to the defence that their belief about the lawfulness of their action
was honestly held and reasonable considering all of the circumstances. If the
employer gives testimony of such a belief about the lawfulness of the action,
the employer no doubt would be cross‑examined. To succeed, the employer
would have to convince the judge, on a balance of probabilities, that in all of
the circumstances the belief was honestly and sincerely held.[63]
The Panel recommended that the FWA be amended so
that the ‘central consideration about the reason for adverse action is the subjective
intention of the person taking the alleged adverse action’.[64]
Ultimately, whilst the FWA has not yet been amended to give effect to
that recommendation, as this is the approach that has been adopted by the High
Court, such an amendment would appear unnecessary at this time.
As a result, it is likely that where an employer refuses
to employ a worker who lives locally in favour of a FIFO worker, provided the court
is convinced that the ‘reason’ for doing so related to non-prohibited reasons
such as:
- the
local worker’s qualifications and experience
- their
ability to safely commute to and from work or
- their
ability to comply with a demanding roster featuring 12 hour shifts
then a court will find that no adverse action will have
been taken, as it was not taken ‘because of’ where the person lived.
The measure proposed by the Bill represents a simple and
elegant response to a controversial issue. Its effectiveness is likely to be
impacted by how courts interpret the ‘inherent requirement’ defence. In
addition, clearly, if courts continue to apply the ‘narrow’ interpretation
adopted by the High Court, then the effectiveness of the prohibition contained
in proposed section 351A is likely to be, at the very least, limited.
However, despite this, if the Bill was passed it would, at
the very least, be likely to somewhat deter some employers from engaging on a regular
basis in the type of conduct that the Bill seeks to prohibit.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Explanatory
Memorandum, Fair Work Amendment (Prohibiting Discrimination Based On
Location) Bill 2015, p. 2.
[2]. G
Christensen, ‘Second
reading speech: Fair Work Amendment (Prohibiting Discrimination Based On
Location) Bill 2015’, House of Representatives, Debates, (proof), 19
October 2015, p. 7; M Landry, ‘Second
reading speech: Fair Work Amendment (Prohibiting Discrimination Based On
Location) Bill 2015’, House of Representatives, Debates, (proof), 19
October 2015, p. 8, both accessed 12 November 2015.
[3]. Ibid.
[4]. See
for example: L Zussino (chair), FIFO
review report, report prepared for the Queensland Government,
Department of State Development (QLD), Brisbane, July 2015; Queensland
Parliament, Infrastructure, Planning and Natural Resources Committee, Inquiry
into fly-in, fly-out and other long distance commuting work practices in
regional Queensland, 9, 55th Parliament, October 2015; R Cameron, J
Lewis and L Pfeiffer, 'The
FIFO experience: a Gladstone case study’, Australian Bulletin of Labour,
40(2), 2014, pp. 221–241; N Skilton, ‘Re-imagining
geographic labour mobility through ‘distance labour’’, Australian
Journal of Public Administration, 74(3), 2015, pp. 364–369, all accessed
17 November 2015.
[5]. Explanatory
Memorandum, Fair Work Amendment (Prohibiting Discrimination Based On
Location) Bill 2015, op. cit., p. 3.
[6]. Senate
Standing Committee for the Scrutiny of Bills, Alert
Digest , 12, 2015, 11
November 2015, p. 11, accessed 7 December 2015.
[7]. Inarvaez,
‘Abbott
backs 100% FIFO plan for new mine’, Daily Mercury, blog, 14 October 2014,
accessed 12 November 2015.See also: Parliament of Australia, ‘Tax
and Superannuation Laws Amendment (2015 Measures No. 5) Bill 2015 homepage’, Australian Parliament website, accessed 7 December 2015.
[8] Australian
Government, Response
to the House of Representatives Standing Committee on Regional Australia
report: Cancer of the bush or salvation for our cities? Fly-in, fly-out and
drive-in, drive-out workforce practices in Regional Australia, Commonwealth of
Australia, June 2015, p. 8 (recommendation 12), accessed 12 November 2015.
[9]. W
Truss (Deputy Prime Minister and Minister for Infrastructure and Regional
Development), Australian
Government responds to FIFO report, media release, 4 June 2015, accessed
12 November 2015, p. 1: ‘... the Government recognises that fly-in, fly-out
(FIFO) work practices are one way the labour market is responding to the demand
for skilled workers around Australia in a range of sectors.’
[10]. Australian
Labor Party, National
platform: a smart, modern, fair Australia, Australian Labor
Party policy document, 2015, p. 190, accessed 6 November 2015.
[11]. Ibid.,
pp. 190–191.
[12]. Australian
Greens, Standing
up for what matters in the Kimberley, Greens policy document, Election
2013, p. 6, accessed 6 November 2015.
[13]. Queensland
Parliament, Infrastructure, Planning and Natural Resources Committee, Fly
in, fly out and other long distance commuting work practices in regional
Queensland, Queensland Parliament, Brisbane, October 2015, accessed 10
November 2015.
[14]. Rio
Tinto, Submission
to Queensland Parliament, Infrastructure, Planning and Natural Resources
Committee, Inquiry into fly in fly out and other long distance
commuting work practices in regional Queensland (Queensland Inquiry), 18
May 2015, p. 2, accessed 10 November 2015.
[15]. Association
of Mining and Exploration Companies, Submission
to the Queensland Inquiry, May 2015, p. 6, accessed 10 November 2015.
[16]. Australian
Mines and Metals Association (AMMA), Submission
to the Queensland Inquiry, May 2015, pp. 3–4, accessed 10 November 2015.
[17]. Australian
Workers Union, Submission
to the Queensland Inquiry, May 2015, p. 2, accessed 10 November 2015.
[18]. Ibid.,
p. 7.
[19]. Electrical
Trades Union of Employees Queensland, Submission
to the Queensland Inquiry, May 2015, p. 2, accessed 10 November 2015.
[20]. Ibid.,
p. 8.
[21]. Ibid.
[22]. Australian
Manufacturing Workers Union, Submission
to the Queensland Inquiry, May 2015, p. 2, accessed 10 November 2015.
[23]. Queensland
Council of Unions, Submission
to the Queensland Inquiry, May 2015, p. 1, accessed 10 November 2015.
[24]. Construction
Forestry Mining and Energy Union, Submission
to the Queensland Inquiry, May 2015, p. 3, accessed 10 November 2015.
[25]. Local
Government Association of Queensland, Submission
to the Queensland Inquiry, May 2015, p. 3, accessed 10 November 2015.
[26]. Ibid.
[27]. See
for example: Western Downs Regional Council (WDRC), Submission
to the Queensland Inquiry, 21 May 2015, p. 1, accessed 10 November 2015:
'WDRC opposes a 100% FIFO workforce however understands the role and
requirement for FIFO in regional areas. WDRC prefers and strongly encourages
proponents to develop and implement a robust live local policy... ’; Isaac
Regional Council, Submission
to the Queensland Inquiry, 25 May 2015, p. 11: ‘Overturn mandated FIFO
practices and ensure the local labour market is not excluded from local
employment opportunities’; Mackay Regional Council, Submission
to the Queensland Inquiry, 25 May 2015, p. 1.: ‘... just as 100% local engagement
is not possible neither should 100% FIFO be supported’; Rockhampton Regional
Council (RRC), Submission
to the Queensland Inquiry, 25 May 2015, p. 1: ‘RRC does not support the
practice of exclusive or biased draw from specific postcodes’ and p. 3: ‘RRC
does not support 100% FIFO’; North West Queensland Regional Organisation of
Councils, Submission
to the Queensland Inquiry, 25 May 2015, p. 1, all accessed 17 November 2015.
[28]. Cairns
Regional Council, Submission
to the Queensland Inquiry, May 2015, p. 2, accessed 10 November 2015.
[29]. Australian
Christian Lobby, Submission
to the Queensland Inquiry, May 2015, p. 4 and 6, accessed 10 November 2015.
[30]. Queensland
Parliament, Infrastructure, Planning and Natural Resources Committee, Inquiry
into fly-in, fly-out and other long distance commuting work practices in
regional Queensland, op. cit., pp. iii, v, x, 76.
[31]. Explanatory
Memorandum, Fair Work Amendment (Prohibiting Discrimination Based On
Location) Bill 2015, op. cit., p. 1.
[32]. The
Statement of Compatibility with Human Rights can be found at page 4 of the
Explanatory Memorandum to the Bill.
[33]. Parliamentary
Joint Committee on Human Rights, Thirtieth
report of the 44th Parliament, 10 November 2015, p. 1, accessed
7 December 2015.
[34]. Fair Work Act 2009,
accessed 8 December 2015.
[35]. Fair
Work Act 2009, paragraph 340(1)(a).
[36]. Fair
Work Act 2009, subsection 351(1).
[37]. This
is because a ‘workplace right’ is defined in the FWA as where a person
is ‘entitled to the benefit of... a workplace law’ or ‘able to initiate, or
participate in, a process or proceedings under a workplace law’: Fair Work
Act 2009, paragraphs 341(1)(a) and (b). Importantly, a ‘workplace law’ is
defined as including both the FWA and any other Commonwealth, state or
territory law that ‘regulates the relationship between employers and
employees’, including work health and safety (WHS) laws: Fair Work Act 2009,
section 12. The relevant legislation listed in the FWA is applicable to
conduct in the workplace in each jurisdiction. Further, the various
Commonwealth, state and territory anti-discrimination laws provide a ‘benefit’,
namely the right to be free from unlawful discrimination, including in
employment-related matters (see, for example, section 14 of the Sex Discrimination Act
1984 (Cth)). It flows from this that the relevant laws therefore
regulate ‘the relationship between employers and employees’ and hence each are
a ‘workplace law’ for the purpose of the FWA. Therefore a key workplace
right is to be free from unlawful discrimination, and, as a result the FWA
general protection regime applies to discrimination rendered unlawful by either
the Fair Work Act 2009 itself, or other Commonwealth, state or territory
laws.
[38]. Fair
Work Act 2009, section 351.
[39]. Explanatory
Memorandum, Fair Work Amendment (Prohibiting Discrimination Based On
Location) Bill 2015, op. cit., p. 3: ‘This new section is modelled on the
existing section 351 of the Fair Work Act 2009.’
[40]. Fair
Work Act 2009, subsection 343(1), table item 2.
[41]. Fair
Work Act 2009, subsection 342(3).
[42]. Fair
Work Act 2009, subsection 351(1).
[43]. Cauchi
v Metal Coat [2010]
FMCA 971, accessed 8 December 2015.
[44]. See
for example: T MacDermott, ‘Challenging
age discrimination in Australian workplaces: from anti-discrimination legislation
to industrial regulation’, University of New South Wales Law Journal,
34(1), 2011, p. 204; Hammond v Boutique Kitchens & Joinery Pty Ltd
(2010) 198 IR 336, [2010]
FMCA 622 (16 August 2010); Liquor Hospitality and Miscellaneous Union v
Arnotts Biscuits Ltd (2010) 188 FCR 221,
[2010]
FCA 770 (23 July 2010), all accessed 8 December 2015.
[45]. Fair
Work Act 2009, sections 372, 374 and 539.
[46]. Fair
Work Act 2009, subsection 374(1).
[47]. Fair
Work Act 2009, section 539(2), table item 11.
[48]. Fair
Work Act 2009, sections 545, 546, 547 and 570.
[49]. For
such an overview see: A Chapman, ‘Judicial
method and the interpretation of industrial discrimination’, Australian
Journal of Labour Law, 28(1), 2015, pp. 1–32, accessed 17 November 2015.
[50]. Qantas
Airways Ltd v Christie (1998) 193 CLR 280, [1998]
HCA 18 at [32–33], [81].
[51]. Ibid.,
as per Brennan CJ at [1].
[52]. House
of Representatives Standing Committee on Regional Australia, Cancer
of the bush or salvation for our cities? Fly-in, fly-out and drive-in,
drive-out workforce practices in Regional Australia, House of
Representatives, Canberra, February 2013, paras 3.9, 3.56–3.73, accessed
10 November 2015.
[53]. Ibid.,
para 3.70.
[54]. AMMA,
Submission
to the Queensland Inquiry, May 2015, pp. 3–4, accessed 10 November 2015,
[55]. Maranoa
Regional Council, Submission
to the Queensland Inquiry, 25 May 2015, p. 1, accessed 8 December 2015.
[56]. See
for example: Fair Work Act 2009, sections 340, 346 and 351.
[57]. See
for example: Board of Bendigo Regional Institute of TAFE v Barclay (2012) 248 CLR 500, [2012] HCA 32; Construction,
Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, [2014] HCA 41; CFMEU v
Endeavour Coal Pty Ltd (2015) 231 FCR 150, [2015]
FCAFC 76; Construction, Forestry, Mining and
Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, all accessed 8
December 2015.
[58]. J
Riley, quoted in D Marin-Guzman, ‘Adverse
action only stops ‘explicit victimisation’: academic’, Workforce,
12 June 2015, Westlaw database, accessed 10 November 2015.
[59]. CFMEU
v Endeavour Coal Pty Ltd [2015]
FCAFC 76, at [189].
[60]. Ibid.,
at [185].
[61]. Australian
Council of Trade Unions, Submission
to Productivity Commission, Inquiry into the Workplace Relations Framework,
167, 27 March 2015, p. 323, accessed 10 November 2015,
[62]. J
Riley, quoted in D Marin-Guzman, op. cit.
[63]. Department
of Education, Employment and Workplace Relations (DEEWR), Towards more productive and equitable workplaces: an evaluation of the
Fair Work legislation (Fair Work Act Review),
DEEWR, Canberra, 15 June 2012, p. 237, accessed 10
November 2015.
[64]. Ibid.,
recommendation 47.
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