AMMA cautiously welcomed the consolidation of Australia’s anti-discrimination laws, but says steps must be taken to protect employers from vexatious claims, increased compliance costs and regulatory burden.
The federal government released the draft Human Rights and Anti Discrimination Bill on 20 November.
AMMA chief executive Steve Knott says the resource industry has some concerns around compliance costs and a provision for the reverse onus of proof.
“Like any attempt to consolidate or harmonise various laws into a single piece of legislation, we support the notion that Australia’s anti-discrimination laws could be streamlined for simpler access by Australian workers and clearer usage for employers,” Mr Knott said.
“It is an accepted human right that no worker should have decisions made about their employment arrangements based solely on race, sex, religious beliefs or any other personal attributes identified as discriminatory.
“However any legislative consolidation must ensure employers are not unfairly impacted by additional compliance costs and regulatory burdens. There are some aspects of this exposure draft Bill that the resource industry does not support in the current form.
“By shifting the reverse onus of proof to the respondent once an applicant has established ‘a prime facie case’, the draft bill ignores industry’s concerns about the same provisions under the Fair Work Act’s adverse action framework.
“The primary concern with reverse onus of proof, as demonstrated under the FW Act, is that it encourages non-meritorious claims to be brought by employees and allows claims to proceed further than they otherwise would if the burden of proof rested with the applicant.
“Without removing this reverse onus of proof from both pieces of legislation, Australian employers could find themselves in court having to defend vexatious claims under numerous laws, all with the pretence of ‘guilty until proven innocent’.”
Minister for Finance and Deregulation Penny Wong said the consolidated legislation will provide business with certainty by allowing the Commission to dismiss non-meritorious complaints.
“Consolidating anti-discrimination laws will make compliance easier, reduce costs and shift the focus from redressing wrongs to preventing discrimination from occurring in the first place – this is particularly good news for small business,” Senator Wong said.
“Business will also benefit from the ability of the Australian Human Rights Commission to certify codes or standards that will act as a full defence to claims of discrimination.”
Mr Knott said there were implications around this consolidated legislation running alongside, rather than replacing, existing state/territory laws and discrimination aspects of the Fair Work Act.
“When resource employers are already experiencing significant cost blowouts and flat-lining labour productivity under the Fair Work Act, it is critical the government consults with the industry on how to minimise any further cost and regulatory burdens that may arise from this consolidation process.”
In addition to the removal of the reverse onus of proof, AMMA has submitted to the Fair Work Review Panel that the adverse action provisions should significantly reduce the six-year time limit on claims to 21 days; as well as cap the existing unlimited compensation allowance to $200,000.
The exposure draft legislation can be found here.